CM and National Disability Insurance Agency

This matter concerned an interlocutory application before the National Disability Insurance Scheme (NDIS) Tribunal, brought by the Applicant against the National Disability Insurance Agency (NDIA). The dispute centred on whether certain documents, specifically OP4, OP5, and OP9, which had been filed by the Applicant, were subject to an implied undertaking, commonly known as a *Harman* undertaking, and therefore should not be received into evidence by the Tribunal.

The legal issues before the Tribunal were whether the Applicant had established the existence of a *Harman* undertaking in relation to documents OP4, OP5, and OP9, and if so, whether special circumstances warranted releasing the Applicant from that undertaking to permit their use in the NDIS Tribunal proceedings. The Applicant contended that these documents originated from Family Court orders made in proceedings between himself and the Other Party, suggesting they were subject to such an undertaking.

The Tribunal considered the Applicant's submissions regarding Family Court orders from March 2021 and February 2022, which he asserted led to the creation of OP4, OP5, and OP9. The Tribunal noted that it is for the court or tribunal to which documents are produced to release a party from an implied undertaking, and that the test for such release involves demonstrating "special circumstances." While acknowledging that courts can exercise discretion to allow documents to be used in tribunal proceedings, the Tribunal expressed reservations about the existence of a *Harman* undertaking for the Affidavit, noting it was created and filed by the Other Party and not objected to.

Consequently, the Tribunal directed the Applicant to file all relevant Family Court Orders within 14 days. The Tribunal indicated that, subject to further information, documents OP4 and OP5 ought not to be received into evidence due to potential *Harman* undertaking restrictions. However, document OP9 and an Affidavit to Support Application for Intervention Order were considered potentially admissible, subject to further information and relevance.