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The Harman undertaking and tax litigation

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Published on 01 Oct 17 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

The Harman undertaking is an implied undertaking to the court, in litigation, that documents obtained as a result of the compulsory processes of the court will be used only for the purposes for which they were disclosed and will not be used for a collateral or ulterior purpose. It applies in tax litigation as in other litigation, but due regard is had to the fact that tax recovery proceedings and tax appeals, although often conducted in different forums, are nevertheless related proceedings. This article explains the scope and operation of the undertaking, and how it applies in tax litigation in particular. Examples of recent applications in tax cases are provided. Key considerations are discussed, including the “special circumstances” test, what constitutes an
“ulterior purpose” and the implications of breach. The authors emphasise that tax practitioners should be aware of the undertaking, as a breach may constitute a contempt of court.

Author profiles

Johnson Russ
Ground Floor Wentworth Chambers
Antipas Greg CTA
Barrister, Ground Floor Wentworth Chambers
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Rashelle Seiden
As a revenue law specialist, Rashelle focuses on tax litigation, including tax appeals, administrative review, recovery proceedings and tax-related criminal proceedings. In addition, she advises and represents clients in matters concerning administrative law, trusts, corporate and commercial law, bankruptcy and insolvency. Rashelle has appeared in many high-profile cases in the High Court of Australia, the Federal Court of Australia and the NSW Court of Appeal. In 2013, she was appointed Senior Counsel for the State of NSW. Rashelle was listed in the Doyle’s Guide 2016 as a Recommended Taxation Senior Counsel, and a Leading Taxation Senior Counsel in 2017. Rashelle is also a Principal Member, and member of the Appeal Panel, of the NSW Civil and Administrative Tribunal. - Current at 09 February 2018
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