Halkias & Pace

In the matter of *Halkias & Pace*, heard by Beckhouse J, the applicant, Ms Halkias, sought an order releasing the parties from the implied *Harman* undertaking in relation to an affidavit sworn by the respondent, Ms Pace. This affidavit had been filed in the present family law proceeding and Ms Halkias sought leave to use it in defamation proceedings then before a State Court.

The central legal issue before the Court was whether to grant leave to use the affidavit, which was subject to the implied *Harman* undertaking, in separate defamation proceedings. This undertaking, which arises from the implied obligation not to use documents obtained in litigation for collateral purposes, is a significant constraint on the use of discovered material. The Court also had to consider the implications of section 121 of the *Family Law Act 1975* (Cth), which prohibits the publication of identifying information from family law proceedings.

Beckhouse J reasoned that the *Harman* undertaking could be discharged or modified by the court in appropriate circumstances. The Court considered that the public interest in the proper administration of justice in the defamation proceedings outweighed the continued operation of the *Harman* undertaking in this instance. However, to mitigate potential prejudice and to comply with the spirit of section 121 of the *Family Law Act 1975*, the Court ordered that annexures to any affidavits containing documents from the State Court proceedings be placed in a sealed envelope and not distributed without further order.

The Court ordered that the parties be released from the implied *Harman* undertaking in respect of Ms Pace's affidavit sworn 27 April 2017, and granted leave to use the affidavit in the defamation proceedings before the State Court, subject to the conditions regarding sealed annexures.