Harradine v State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HARRADINE v STATE OF SOUTH AUSTRALIA
[2025] SASC 17
Decision of the Honourable Justice B Doyle
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - IRRELEVANCE
TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - ESSENTIALS OF ACTION
On 31 May 2014 the applicant was arrested and charged with multiple counts of rape and other offences against the complainant (the applicant’s former wife). The charges in the Magistrates Court were ultimately dismissed on 8 April 2015.
The applicant alleges that a police officer, Ms Z, for whose actions the respondent is said to be liable, instituted and maintained the prosecution of the applicant and that the respondent is guilty of the tort of malicious prosecution.
By interlocutory application filed on 2 January 2025, the applicant seeks an order pursuant to Rule 116 of the Uniform Civil Rules 2020 (SA) for non-party discovery, requiring the complainant to discover any documents by which she was notified by the Department of Home Affairs that she had been granted a permanent partner visa concerning her marriage to the applicant.
Held, dismissing the application for non-party discovery under Rule 116:
1.The material sought by the application is not relevant to a cause of action the subject of the proceeding.

2. It is not otherwise appropriate to make the order sought.
Supreme Court Civil Rules 2006 (SA) r 146; Uniform Civil Rules 2020 (SA) r 116, referred to.
A v New South Wales (2007) 230 CLR 500; Beckett v New South Wales (2013) 248 CLR 432, applied.
Commissioner of Police v Channel Seven Adelaide Pty Ltd [2008] SASC 164; Cosenza v State of South Australia [2024] SASC 97; Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) (2010) 267 ALR 494, considered.

HARRADINE v STATE OF SOUTH AUSTRALIA
[2025] SASC 17
Civil: Interlocutory Application

B DOYLE J: By interlocutory application filed on 2 January 2025, the applicant seeks an order that a non-party (to whom I will refer as the complainant) produce to the applicant those documents by which she was notified by the Department of Home Affairs that she had been granted a permanent partner (subclass 801) visa concerning her marriage to the applicant.[1]
[1] FDN 173.
The application initially relied upon Rule 73.16 of the Uniform Civil Rules 2020 (SA) but at an earlier hearing I granted the applicant permission orally to amend the application so as to rely on Rule 116. Accordingly, I proceed on the basis that this is in substance an application not for production, but for non-party discovery.
The application has been served upon the complainant and she has been notified of this hearing. She did not appear at the time fixed for the hearing.
The application was opposed by the State of South Australia (the respondent in the proceeding), principally on the grounds of relevance. Before canvassing the submissions about relevance made by the parties, it is convenient briefly to summarise the applicant’s claim as set out in his pleading,[2] and the legal foundation for it.
[2] The current statement of claim is titled ‘Amended Claim – Revision 3’ (FDN 101) (‘Claim’).
The applicant’s claim
The complainant formerly resided in Bangkok. She and the applicant, who at all material times has resided in South Australia, met online in around 2008. They became married on 30 September 2009. They separated in May 2013.
On 31 May 2014, the applicant was arrested by a Brevet Sergeant of the South Australian Police (‘Ms Z’) and charged with a number of counts of rape and additional counts of compelled sexual manipulation involving the complainant.
So far as is relevant to this application, the applicant’s claim against the respondent is founded on the tort of malicious prosecution. His claim is that Ms Z, for whose actions the State of South Australia is said to be liable, instituted and maintained the prosecution of the applicant until, on 8 April 2015, those charges were dismissed in the Magistrates Court.
Without being exhaustive, the applicant alleges that:
(1)in October 2013, when the complainant first contacted police and reported that the applicant had forced her, a number of times, before and after their marriage, to have sexual ‘threesomes’, she stated to police that she wanted the applicant criminally charged as this would assist her in Family Court proceedings;
(2)in statements provided to police on 1 November 2013, 15 November 2013 and 29 November 2013, the applicant disclosed to police that the applicant had video recorded the threesomes;
(3)on 28 March 2014, the complainant advised police that she did not wish her complaints against the applicant to proceed and signed a form designated PD207B;
(4)on or about 7 May 2014, after being encouraged and/or persuaded to do so by police, the complainant informed police that she wished her complaints against the applicant to proceed;
(5)on 22 May 2014, the complainant attended Holden Hill Police Station and gave Ms Z a USB drive containing video clips of the complainant having sex with K on three occasions (25 January 2012, 28 September 2012 and 16 January 2013);
(6)on the same day, the complainant alerted Ms Z to the fact that the applicant kept the tapes of the sexual activity at home on his PC;
(7)the applicant’s home PC did contain the complete unedited footage of the three last occasions on which he and the complainant participated in threesomes (on each occasion with a man referred to as K) (on 25 January 2012, 28 September 2012 and 16 January 2013) and clips from three other occasions (one involving K and two others, pre-dating their marriage, involving a man referred to as S);
(8)when police searched the applicant’s home on 30 May 2014, the day prior to his arrest, his PC was set up, plugged in and obviously in use. It was carried away by the police;
(9)on 5 September 2014, the applicant’s lawyer wrote to the DPP and described where on the PC the video files of threesomes, and upon which the charges were based, were saved;
(10)the sex tapes depict the complainant as an uninhibited, proactive, autonomous and sober participant enjoying herself and ‘make a nonsense’ of any suggestion that the complainant was not consenting;
(11)in particular, the unedited video recording of the threesome that occurred on 16 January 2013, which occasion the complainant is said not to have mentioned in her statements to police, shows proactive conduct by the complainant which, on the applicant’s case, strongly contraindicates a lack of consent;
(12)the applicant was required to attend numerous hearings of the charges in the Magistrates Court before they were dismissed on 8 April 2015.
I emphasise at this juncture that many of those allegations are denied or are not admitted. For the purposes of this application, I can confine my attention to the applicant’s case.
The elements of a claim in malicious prosecution are as summarised by the plurality in A v New South Wales.[3] To succeed, the claimant must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause.
[3] (2007) 230 CLR 500 at [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).
In this context, malice connotes more than ill-will or spite, and means an improper purpose. It will be necessary to return in more detail to the requirement to prove the absence of reasonable and probable cause.
The applicant’s pleading deals with those two elements distinctly.
In respect of the absence of reasonable and probable cause, the applicant alleges that Ms Z arrested, charged and instituted the prosecution on 31 May 2014 without reasonable and probable cause having regard to a number of particularised matters.[4] These include that: she wilfully or unreasonably ignored what was shown on the USB provided by the applicant; she proceeded without having examined the sex tapes; the witness statements available to her did not support the charges or were ambiguous or unsatisfactory; and she should have investigated (but did not) the motives of the complainant in relation to the complainant seeking to use the charges to her advantage in Family Court proceedings.
[4] Claim [66].
The applicant also alleges that if the prosecution was not instituted without reasonable and probable cause, Ms Z maintained the prosecution without reasonable and probable cause. In that regard the applicant relies on the same matters pleaded in relation to the institution of the proceedings together with other matters including that Ms Z should have examined the sex tapes immediately after she had been informed both of their location on the applicant’s PC and that they were likely to be germane to his defence of the charges.[5] The allegations also include an unparticularised contention that Ms Z failed to follow various prosecution guidelines.[6]
[5] Claim [67].
[6] Claim [66.9], [67.7].
The applicant alleges that Ms Z instituted and maintained the prosecution of the applicant maliciously. He relies on the matters pleaded in relation to the absence of reasonable and probable cause and a number of other allegations about her conduct during and immediately following the prosecution.[7]
[7] Claim [68].
The application for non-party discovery
The application is supported by an affidavit sworn by the applicant on 2 January 2025.[8] In it he explains his case is that the police were ‘wilfully blind’ in relation to evidence indicative of his innocence of the allegations previously made against him by the complainant and failed to make warranted inquiries.
[8] FDN 174.
He says that on 31 May 2014 he was arrested and charged with 14 sexual offences, but that an information on 12 June 2014 reduced the charges to seven and did not charge him with the two later (most recent) ‘threesomes’ that occurred on 28 September 2012 and 16 January 2013.
He deposes that item 60 of the respondent’s discovery is a DVD that includes a clip depicting the complainant involved in sexual activity on 16 January 2013.
The applicant swears that to the best of his recollection the complainant had been granted a permanent partner visa by the Department of Immigration on about 20 December 2012.
The applicant says that the complainant had suggested that her participation in the threesomes was achieved in part as she feared that the applicant would otherwise send her back to Thailand.
He swears that despite request the complainant has not provided the applicant with a copy of the letter from immigration.
On the hearing of the application before me, the applicant contended that the evidentiary material sought by his application was relevant to the cause of action pleaded by him, namely, the tort of malicious prosecution. He submitted that relevance could be demonstrated if the material was relevant to making out that claim, without that inquiry necessarily being tethered to any specific allegation or particulars in the statement of claim.
The applicant accepts that because his guilt or innocence of the underlying offending alleged against him is not in issue,[9] he cannot justify the relevance of the material on that ground. His argument was that the material was relevant to the elements of absence of reasonable and probable cause and malice. The applicant submitted that it was trite that wilful blindness could be shown by a failure to make reasonable inquiries. He submitted that a prosecutor was bound to consider reasons why a complainant may lie and to follow up obvious lines of inquiry.
[9] Beckett v New South Wales (2013) 248 CLR 432.
Consideration
Rule 116 empowers the Court to make an order if satisfied that a non-party may be in possession of evidentiary material relevant to a cause of action the subject of the proceeding.
In Commissioner of Police v Channel Seven Adelaide Pty Ltd,[10] White J identified a number of matters ordinarily bearing on the exercise of the discretion under a predecessor rule,[11] namely:
the directness (or indirectness) of the relevance of the documents to the issues in the case; the coercive nature of the process; the extent to which the non-party is likely to incur expense or experience difficulty in complying with the order; and the extent to which compliance with the order will impinge upon the confidentiality of the information held by the non-party, or upon the privacy of the non-party or other persons.
[10] [2008] SASC 164 at [35].
[11] Supreme Court Civil Rules 2006 (SA), Rule 146.
He went on to observe that:
A non-party should not be required, under the coercion of a Court order, to disclose any more documents than are necessary to dispose fairly of the proceedings. Ultimately the order should be framed so as to best serve the interests of justice in the particular case.
The Rule does not require that the evidentiary material be directly relevant to a cause of action the subject of the proceeding.
Indirect relevance may suffice, but in my view, because the material must be relevant to a cause of action ‘the subject of the proceeding’, it remains necessary to look to the way in which the cause of action has been pleaded. It is not appropriate simply to identify the cause of action relied upon in the abstract and then to consider whether the documents sought might assist in proof or disproof of that cause of action without regard to whether the basis upon which it might assist or otherwise would be available on the pleadings.
Even if I am wrong in this, and the Rule confers a discretion in an appropriate case to order the discovery of documents which concern facts that could be pleaded in connection with the cause of action the subject of the proceeding, I would be reluctant to exercise the discretion in respect of a cause of action which, because it entails a serious allegation, is required to be pleaded with sufficient detail so that the respondent knows the case being mounted against it.[12]
[12] Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) (2010) 267 ALR 494 at [66] (Flick J).
I consider that the way in which the applicant submits that the document might bear on proof of his case is not sufficiently disclosed by his pleading. That is to say, he does not plead that the complainant told Ms Z that her participation in threesomes was achieved in part as she feared the applicant would otherwise send her back to Thailand.[13] Since this is the foundation for the proposition that investigating the complainant’s visa status was an obvious line of inquiry, it is difficult to see that an argument that the failure to pursue that line of inquiry would be available, on the present pleadings, in aid of a contention that Ms Z acted without reasonable and probable cause or with malice. It is true that there are general allegations that Ms Z did not follow prosecutorial guidelines, and, in a general sense, it may be that pursuing obvious lines of inquiry would be expected by those guidelines. But in a case founded on a tort such as malicious prosecution, in my view, greater particularisation is called for.
[13] Mr Ambrose submitted that the statements of the complainant did not reveal that she had said this to police. I permitted the applicant an opportunity to point to any passages of the statements demonstrating that such a statement had been made. The applicant has subsequently accepted that he is unable to point to a direct statement of that nature.
However that may be, and even accepting that minds may differ about whether a line of factual inquiry or argument is fairly disclosed by the pleadings, I consider that there is a further obstacle to the applicant’s success on this application.
It relates to the difference between material that discloses the existence of an obvious line of inquiry, and material that discloses what the outcome of the pursuit of such an inquiry may have been.
In A v New South Wales, the plurality gave guidance as to the question of proof of the absence of reasonable and probable case, explaining that it has both a subjective and objective dimension.[14] If the prosecutor did not hold the requisite belief, then absence may be demonstrated in that way. If the prosecutor did hold the requisite belief, a question may arise as to whether that was reasonable based upon the material upon which the prosecutor formed that belief. That is an objective inquiry, albeit undertaken with reference to the material actually known to the prosecutor.[15]
[14] (2007) 230 CLR 500 at [61] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).
[15] Cosenza v State of South Australia [2024] SASC 97 at [493] (McDonald J).
As to that objective inquiry, the plurality said:[16]
[T]he resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made.
It is, nonetheless, important to recognise what, standing alone, may not suffice to show a want of objective sufficiency. It is clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made.
For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting a crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused’s conduct.
[16] (2007) 230 CLR 500 at [85]-[87] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).
Putting to one side the question of the particularity of, or fair notice provided by, the pleading, the applicant might seek to contend at trial that there was material known to Ms Z which so obviously called for an inquiry to be made about the visa status of the complainant that, having not made such an inquiry, any belief she held in there being sufficient cause to prosecute the applicant was unreasonable, when viewed objectively.
That proposition may or may not be made out, but it is not apparent to me how the outcome would be affected by knowing (or proving) what it is that such an inquiry would have revealed. The applicant frankly conceded that he is not presently in a position to say what it would have revealed. He also was not able to articulate how knowing the answer to the inquiry would bear on whether the failure to have made it rendered the belief unreasonable, beyond submitting that in a ‘visceral sense’ it must assist in casting light on that question. I think that in truth any apparent relevance involves impermissible hindsight or backwards reasoning, namely, that if an inquiry can be shown to have been likely to bear fruit, it must therefore have been unreasonable not to pursue it.

The issue is not what facts would have been known to a reasonable police officer investigating the complainant’s allegations following reasonable or obvious lines of inquiry. It is whether Ms Z had the requisite belief and if so, whether having regard to the material upon which it was based, that belief was not reasonable. The failure to have pursued a line of inquiry may, but not must, be influential in determining that question.
Whilst the applicant also submitted that the discovery was relevant in demonstrating malice, I do not accept that it is. A fact which was not known to or alleged to have been known to Ms Z cannot shed light on her motive for instituting or maintaining the prosecution.
In the course of argument, I raised the question whether the documents might have been relevant to causation. Mr Ambrose submitted, and I accept, that they are not, because if it is shown that from a particular time the proceedings were instituted or maintained on a basis which was relevantly malicious, then it will not avail the respondent to say that had further inquiries been made, they would not have shown anything pertinent about the complainant’s visa status. Likewise, it would not be necessary for the applicant in that scenario to demonstrate the converse, and so proof that the inquiries would have revealed an additional reasons that to maintain the prosecution would be superfluous.
Disposition
I am therefore not satisfied that the documents the subject of the application are relevant to the cause of action, whether as presently pleaded, or more generally, nor that I should otherwise exercise any discretion available to me to order the discovery sought. Whilst not decisive, I bear in mind the intrusion of privacy and inconvenience that would be caused by a non-party discovery order.
The application is dismissed. I will hear the parties as to costs.

[2025] SASC 17

24 February 2025