The ‘implied undertaking’ which is really a substantive legal obligation

Associate Justice Derham from time to time produces beautifully succinct and thorough summaries of the law, especially laws relating to procedure, in his careful judgments.  Busy practitioners are very grateful.  Here is his most recent such summary, from Fotopoulos v Commonwealth Bank of Australia [2017] VSC 61.  It is a helpful exposition of the substantive legal obligation which is sometimes referred to as an ‘implied undertaking’ or ‘the Harman principle’ after the House of Lords’ decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280. Continue reading “The ‘implied undertaking’ which is really a substantive legal obligation”

Judges’ referrals to the ATO, police, Legal Services Commissioners

Often enough, judges refer the conduct of lawyers appearing before them (or disclosed by the case they are adjudicating) to the Legal Services Commissioner for investigation.  A recent example is Re Manlio (no 2) [2016] VSC 130.  Judges also refer the conduct of non-lawyer parties to investigative agencies, e.g. where a tax fraud is suggested by evidence in the case.

Generally, this is not done pursuant to any statutory directive or authority.  An exception is s. 202 of the Legal Profession Uniform Law which requires the Costs Court to refer a matter to the Legal Services Commissioner if it considers that the legal costs charged, or any other issue raised in the assessment, may amount to unsatisfactory professional conduct or professional misconduct.  (Compare s. 3.4.46 of the Legal Profession Act 2004 which authorised rather than required the Taxing Master to make a referral.)

I have never been particularly clear about the nature of such a referral, or as to the procedures which ought to be followed. Gibson DCJ set out the principles recently, at least as they apply in NSW, in Mohareb v Palmer (No. 4) [2017] NSWDC 127: Continue reading “Judges’ referrals to the ATO, police, Legal Services Commissioners”

Release from implied undertaking for information relevant to criminal investigation

In Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd [No 2] [2009] WASC 207, Justice Beech released a party to litigation from the Harman v Home Office implied undertaking not to use documents obtained under the compulsions which are an incident of litigation for a purpose other than the litigation.  His Honour did so to the extent necessary to allow the provision to the Police of answers to interrogatories administered by the party.  His Honour formed the view that the answers would be useful in a forgery investigation being carried on by the fraud squad into a person other than the party interrogated, and in balancing the scales between limiting the invasion of privacy occasioned by litigation and punishing crime, the balance was in favour of the latter.  His Honour summarised the principles in deciding whether to grant an application for release from the undertaking in order to provide information obtained in litigation to the police or other investigative authorities as follows:

Continue reading “Release from implied undertaking for information relevant to criminal investigation”