Earlier this month the Supreme Court published its decision in the matter of Lighthouse Equity Pty Ltd v Dale Alcock Homes Pty Ltd [2025] WASC 227. The decision of his Honour Justice Howard Lighthouse applied to the Supreme Court to dispense with its Harman obligation arising from an arbitration and State Administrative Tribunal proceedings previously conducted between the parties, so that Lighthouse could use certain documents in its Supreme Court action against Dale Alcock Homes. Lighthouse sought for leave to be given on a nunc pro tunc (which translates literally to ‘now for then’, or on a retrospective) basis.
Even though Lighthouse and Dale Alcock Homes were the parties to the previous SAT matter and arbitration, the Harman obligation prevented Lighthouse from using documents obtained from Dale Alcock in its new Supreme Court action.
Lighthouse’s application was broad, in that it sought orders to use ‘relevant documents’ in the Supreme Court proceedings, rather than a list of specific documents or categories of documents.
One of the documents the subject of Lighthouse’s application was a report to which access was restricted pursuant to orders made in the SAT proceeding between the parties. His Honour considered that the SAT was the appropriate forum to deal with the application in respect of that report, in circumstances where there had possibly been a breach of both the Harman obligation and the relevant SAT orders.
The Court ultimately refused Lighthouse’s application on the basis that His Honour did not consider that he had any advantage over either the arbitrator or the SAT in considering any application to modify the Harman obligation.
What is the Harman undertaking?
The Harman undertaking is an implied undertaking to the court, whereby a party to a litigation cannot, without the leave (permission) of the court, use a document which it obtains from the other party through a compulsory court process (such as disclosure) for any purpose other than the purpose for which it was given, unless the document is received into evidence. The Harman undertaking applies even if the second set of proceedings involves the same parties and causes of action.
Basically, just because you or your business has a document received in the course of a litigation, doesn’t mean you can use it!
Consequences?
In Lighthouse, his Honour ultimately refused the plaintiff’s application to dispense with the Harman undertaking, because the Court was not in a better position than the SAT, or the arbitrator, to determine whether to dispense with or modify the Harman undertaking. The plaintiff’s failure to provide the court with a list of specific documents or categories of documents which were captured by its Harman obligation, and which Lighthouse sought leave to use. The defendant also argued, successfully, that Lighthouse’s application amounted to an attempt to obtain pre-action discovery.
What is pre-action discovery?
Watch this space! We’ll be back soon with another article.
Why is this important for businesses?
Businesses who find themselves involved in any court proceedings, should be mindful of the purposes for which they receive documents from the other side, and what the business does with those documents. Just because a document might be useful in another proceeding, does not necessarily mean that it can be used.
If in doubt, it’s best to check with your lawyer beforehand. If you have any questions or find yourself needing advice on this type of situation, Tim Kennedy and the KV disputes team can assist.
Please view the full case using the link below:
http://www.austlii.edu.au/au/cases/wa/WASC/2025/227.html
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