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Solicitor ‘deliberately’ breached Harman undertaking
A solicitor with a South Australian boutique firm was found to have deliberately breached the Harman undertaking by using documents that disclosed the location of an opposing party.
Naomi Neilson
Judge Antoni Lucev of the Federal Circuit and Family Court of Australia (FCFCOA) found a solicitor with Websters Lawyers deliberately ignored a duty of disclosure and breached the Harman undertaking to secure substituted service orders on the other party.
As a result, the service of a bankruptcy notice was set aside.
The Harman undertaking, as set out in Hearne v Street, provides that documents used in litigation other than the litigation in which documents were produced may be a misuse.
In the FCFCOA case, the Websters Lawyers solicitor relied on an affidavit filed in the Federal Court to obtain the whereabouts of the opposing party’s location, namely that he was in prison.
The solicitor argued the breach did not occur because the disclosure of the party’s whereabouts was unnecessary for the purpose of the Federal Court proceedings, but Judge Lucev rejected this.
Judge Lucev said that according to the Federal Court judgment in Sinnot, it is “both the document and the information contained therein that are subject to the Harman undertaking”.
There was also “no evidence” the Websters Lawyers solicitor applied or considered applying to the Federal Court for release from the undertaking, “which is a course which might have been adopted by a diligent solicitor acting appropriately on behalf of the applicants”.
“Instead, the information concerning the respondent’s whereabouts, which was subject to the Harman undertaking, was used, evidently deliberately, as part of the substituted service application by the applicants (and more particularly the applicant’s solicitors), entirely for their own benefit,” Judge Lucev said.
Despite the opposing party’s solicitors cautioning the Websters Lawyers solicitors the exhibit material was in breach, Judge Lucev said they did not disclose this prior to the making of the service orders.
“Without that breach, there would have been no factual basis for making the order for substituted service on the respondent by mail at the prison,” Judge Lucev said.
The court was also informed the applicant’s solicitors sent the notice to the opposing party’s solicitors despite having been told that those solicitors were not acting for the party at that time and, therefore, had no instructions to accept the service on his behalf.
Judge Lucev said this was a “deliberate” decision to “ignore their duty of disclosure on an ex parte application”.
The case is Djunaedi v Collins [2025] FedCFamC2G 135 (7 February 2025).
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
