Harman Undertaking: Using Subpoenaed Bank Records

What is the Harman Undertaking

The Harman undertaking is a legal obligation to use compulsorily produced documents only for the proceedings in which they were obtained. It arises by law, without the party or lawyer signing a promise. Breach can be contempt of court.

In Hearne v Street [2008] HCA 36, the High Court explained the restriction at paragraph 96. Without leave, the recipient cannot:

“use it for any purpose other than that for which it was given unless it is received into evidence.”

The obligation covers bank statements produced under subpoena or compulsory disclosure. It also covers information obtained through compulsory answers and notices to produce. Compelled affidavits, witness statements and expert material can fall within it before receipt into evidence.

The source of compulsion matters. Filing an affidavit does not always establish that the undertaking applies. The Judicial Commission’s NSW guidance distinguishes compulsory disclosure from an ordinary timetable requiring parties to serve evidence they choose to rely on.

The undertaking also reaches people who receive material knowing the circumstances of its production. A lawyer cannot avoid the restriction by asking a client or analyst to pass on the contents. A spreadsheet or summary derived from restricted statements can carry the same problem.

The Harman Undertaking in Family Law

In Federal Circuit and Family Court of Australia (FCFCOA) property proceedings, use of produced records is also governed by express court rules. Rule 6.04 restricts documents inspected, copied or received under the rules or an order. Rule 6.36 addresses documents obtained under a subpoena for production. Both restrict use to the proceedings unless permission or a stated exception applies.

The publication restriction previously known as section 121 of the Family Law Act 1975 now sits in Part XIVB. Schedule 6 of the Family Law Amendment Act 2023 repealed section 121 and inserted its replacement provisions. For historical communications, use the commencement table to identify when the replacement took effect in 2024.

Section 114Q prohibits communicating an identifying account of family law proceedings to the public, subject to court approval or direction. Identification can come from details such as employment, address or property, even when names are removed. Section 114R separately concerns identifying lists of proceedings.

Section 114S describes communications that are not communications to the public. These include certain communications for other proceedings and private communications with family or friends. That exception does not independently release the Harman undertaking or the court rules.

For example, a proposed court-use communication may satisfy Part XIVB while still requiring permission to use the source documents. Before sending records outside the case, address both restrictions and any specific order. The steps for obtaining and inspecting records are covered in family law subpoenas.

Harman Undertaking Exceptions

A permitted use must fit the applicable exception or order. The common-law undertaking, court rules and publication restrictions require separate consideration.

• Material received into evidence in open court can leave the common-law restriction. Merely filing a document or mentioning that it exists does not establish that result. Check whether the document was actually read, referred to as evidence or received, and whether an order still restricts use.
• The producing party’s written consent can support the proposed use and a release application. Do not treat consent as permission where the applicable court rule still requires the court’s leave.
• The court can permit another use. The order must cover the particular documents, recipient and purpose you propose.
• A statute can authorise use for another purpose. Identify the actual provision and its conditions before relying on it.

In NSW, Uniform Civil Procedure Rule 21.7 specifically restricts discovered documents and information from them. It recognises leave and receipt into evidence in open court. Restrictive orders can continue after receipt into evidence. Subpoenaed material also needs consideration under the common law and any applicable production order. For the production process itself, see subpoenaing bank records in other courts.

Record the basis for an exception in the file. Keep the relevant order, consent or transcript passage with the document schedule. A permission for one recipient does not permit wider circulation.

Seeking Release From the Harman Undertaking

Apply to the court responsible for the production before using the records for the new purpose. In the FCFCOA, rule 15.26 permits another use where special circumstances exist. Its document definition includes disclosed and subpoenaed records, expert reports and documents already admitted into evidence.

Prepare a focused application with the following steps.

1. Identify the exact statements or extracts. Record how you obtained them and the orders or rules that restrict them.
2. Define the proposed use. Name the recipient and the separate proceedings or investigation, then explain why these documents assist that purpose.
3. Give notice to the producing party and other affected people as the procedure requires. Explain any urgency in the application instead of circulating records first.
4. Support the request with an affidavit. Address relevance, prejudice and alternatives, including obtaining the same records independently. Propose limits on recipients, further use and confidential information.
5. Check the resulting order against the intended disclosure. Send only material the order permits and retain a record of the transfer.

In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, the Full Court allowed an affidavit from earlier litigation to be used in later Victorian proceedings. The affidavit addressed relevant matters, no prejudice was shown and the later proceedings had their own use restrictions. The court explained that special circumstances require good reason, without demanding extraordinary circumstances.

Fictional Transfer Example

Suppose a spouse’s subpoenaed statements show repeated transfers totalling $85,000 to a relative. The client wants to bring a separate recovery claim against that relative. The statements can inform the property proceedings, but separate use requires a lawful basis.

The supporting affidavit identifies the bank production and each relevant page. It explains the proposed claim, the transfers’ relevance and why independent records have not resolved the issue. It distinguishes the recorded payments from the inference that they might be recoverable. It also explains possible prejudice to the account holder and proposes redacting unrelated transactions.

The draft order seeks permission to use specified statements and derived extracts in the identified claim. It names permitted recipients and addresses further disclosure. The transfers support the application for release. They do not themselves establish entitlement to recover the money.

Criminal Proceedings, Bankruptcy and Other Matters

Reporting suspected fraud, assisting a bankruptcy trustee or preparing another civil claim can involve a different purpose from the original proceedings. A legitimate concern does not automatically release produced records. Sending their contents in an email can be a restricted use even without attaching the statements.

In Adair & Adair [2021] FedCFamC2F 333, a husband sought permission to use property-proceeding affidavits in his criminal defence. The court treated the publication exception and implied undertaking separately. It granted leave because the documents could assist justice in the criminal proceedings, including the alleged inconsistencies in the complainant’s accounts. The decision does not create a general permission to report suspected offending with family-court records.

For police or another regulator, distinguish a referral based on independently known facts from disclosure of information learned through compelled records. Obtain release where required before sending the protected information. A later civil claim needs the same assessment, even if the original litigation has ended.

A trustee can pursue an independent production route. The Australian Financial Security Authority’s Official Receiver guidance explains section 77C notices for information and books. A trustee applies with evidence showing the records’ connection to the administration and why the identified recipient holds them.

A valid notice can seek records from the bank directly. A regulator with an applicable statutory power can likewise obtain records through that power. Keep independently obtained copies and their provenance distinct from the family-proceeding bundle. Seeking new copies does not retrospectively authorise sharing the restricted originals or their contents. Bankruptcy fraud investigations explain the trustee’s wider investigative task.

Handling Produced Bank Records Safely

Keep produced bank records identifiable and limit access to people authorised to use them for the proceedings. Before sending the bundle, read the actual inspection, copying and confidentiality orders, including any limits on permitted recipients. Record the analyst’s role and any required permission. Pass those restrictions into the written instructions, covering derived schedules as well as source copies.

Use a matter-specific control list.

• Mark records with the matter number, production source and any access or use order. Preserve the originals separately from working copies.
• Limit access in the document system. Keep restricted statements out of shared folders used for unrelated matters.
• Log recipients and the files supplied. Record the analysis task and how it supports the proceedings.
• Put use restrictions in engagement terms. Address subcontractors and onward disclosure, then specify return or secure destruction subject to court orders and required retention.
• Apply the same controls to transaction ledgers, extracts and reports derived from the records.

Analysis for the proceedings fits their purpose when the proposed recipient and disclosure are permitted. Rule 6.36 expressly permits providing subpoenaed documents to an expert for the proceedings as allowed by Chapter 7. A statement-analysis provider is not automatically an expert under that provision. Address the provider’s role and obtain permission where the rules or production order require it.

Within an authorised engagement, FinTrace saves hours of monotonous statement review by turning supplied PDFs into a searchable ledger and a clear findings report. Suspicious transactions are flagged, with each finding citing its source PDF filename and page. Lawyers and forensic accountants can move directly from a transfer pattern to its supporting statement. That connection also helps identify the precise extracts needed for a release application.

When investigating hidden money in a property dispute, keep the analysis tied to the current proceedings. Before moving the records into another matter, identify the new purpose and secure the permission that covers it.