The Harman obligation: when does it arise?

Mr Bramston commenced proceedings in the District Court of NSW against Mr Hughes claiming damages for assault and battery following an altercation at the Orient Hotel in The Rocks, Sydney.

Mr Bramston alleged he was punched by Mr Hughes who accused him of flirting and harassing his wife. The punch caused Mr Bramston to fall backwards and he suffered injury including a fracture to his left leg. The incident was captured on CCTV.

At first instance the primary judge found in favour of Mr Bramston and awarded damages of $513,392.97. The award included $50,000 for exemplary damages on the basis that Mr Hughes, through his solicitor, had breached the Harman obligation by providing stills from CCTV footage of the altercation to a reporter prior to the footage being admitted into evidence.

Mr Hughes appealed the primary judge’s decision on a raft of grounds, including the award of exemplary damages.

Harman obligation

The Harman obligation prohibits a party from disclosing evidence obtained through the compulsory processes of the court for any purpose other than the proceedings in which they were produced, unless the court grants leave (Harman v Secretary of State for the Home Department [1983] 1 AC 280). The obligation ceases once the material is admitted into evidence (Hearne v Street [2008] 235 CLR 125).

Court of Appeal proceedings

The Court of Appeal considered whether the CCTV footage was obtained through the compulsory processes of the court and therefore subject to a Harman obligation.

There was a lack of evidence as to how the material had been obtained. The Court determined it was likely that the CCTV footage was either produced on subpoena by the Orient Hotel or formed part of the police brief in the related criminal proceedings.

The lack of evidence as to how the CCTV footage was obtained meant there was no foundation for concluding that a Harman obligation had arisen. Even if a Harman obligation had arisen, it would have ceased once the CCTV footage was deployed in open court.

At the time the stills of the CCTV footage had been disclosed by Mr Hughes solicitor to the reporter the footage had been played in open court but not admitted into evidence.

In accordance with established principles, the Court held that the Harman obligation ceases to apply once a document has been read or referred to in open court such that its contents become part of the public domain. This is different to documents that are read out loud in court but are not admitted into evidence.

In distinguishing this matter, the Court determined that even though the CCTV footage had not been admitted into evidence at the time it was disclosed to the reporter, by playing the CCTV footage in open court what was revealed by the footage had entered the public domain and the footage would be tendered in evidence at an appropriate stage in the proceedings.

The Court therefore held that at the time of its disclosure, the CCTV footage was not subject to a Harman obligation. As such there had been no breach of the Harman obligation and the claim for exemplary damages fell away. The Court upheld Mr Hughes challenge to the award of exemplary damages, being the only successful ground of appeal.

Mr Bramston contended that the award of exemplary damages should be treated as aggravated damages. This was rejected by the Court. Mr Bramston’s case had proceeded based on a claim for exemplary damages arising from a breach of a Harman obligation. It could not be saved by re-labelling it as a claim for aggravated damages. 

Key takeaways

The case is a reminder to parties and legal practitioners of their obligations to ensure that material obtained under compulsory court processes is not used outside the proceedings in which they were produced. A party or practitioner that uses compelled material for a collateral purpose may find itself in contempt of court.

Where use of material for a collateral purpose is foreseeable consideration should be given as to whether it is subject to a Harman obligation. This requires consideration as to how the document was obtained (for example under discovery, subpoena, interrogatories, witness statements and affidavits), has its contents been read in open court, and has it been admitted into evidence. When in doubt, parties and practitioners should act with prudence and apply to the court for a release of the Harman obligation.