Haynes by her tutor Lindley v Haynes

[2020] NSWSC 358

Supreme Court

New South Wales

Medium Neutral Citation:

Haynes by her tutor Lindley v Haynes [2020] NSWSC 358

Hearing dates:

6 April 2020

Date of orders:

06 April 2020

Decision date:

06 April 2020

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Leave to the Plaintiff to reproduce and use in evidence in proceedings before the High Court of Justice, Queen’s Bench Division, Middlesbrough, United Kingdom, the following documents:

 

a. Statement of Claim filed in these proceedings;

 

b. Statement of Particulars filed in these proceedings; and

 

c. The criminal record of the Defendant produced by the NSW Police Service in answer to Subpoena returnable before this Court on 6 March, 2020.

 2. Costs to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – subpoenas – undertaking in relation to documents produced – whether leave should be granted to use documents in another court – personal injury proceedings seeking damages for sexual abuse by plaintiff’s father – father convicted of multiple offences – defendant’s criminal record produced under subpoena by NSW Police - Mareva injunction sought in the United Kingdom to prevent dissipation of proceeds of pending sale of defendant’s property – where a need for defendant’s criminal record to be placed before court in the United Kingdom – leave granted to use criminal record in Mareva injunction proceedings

Legislation Cited:

Nil

Cases Cited:

Premier Travel v Satellite Centres of Australia [2004] NSWSC 864
The Home Office v Harman [1983] 1 AC 280
Wellness Pty Limited v Hamilton-Bond and Ors [2002] NSWSC 1259

Category:

Procedural and other rulings

Parties:

Jennifer Margaret Linda Haynes by her tutor Karen Lindley (Plaintiff)
Richard John Haynes (Defendant)

Representation:

Counsel:
L Goodchild – ex parte (Plaintiff)

  Solicitors:
G Gooden (Plaintiff)

File Number(s):

2019/00131818

Publication restriction:

Nil

Judgment

1. The plaintiff commenced these proceedings on 29 April 2019. She seeks damages in relation to physical and psychological injury she suffered at the hands of the defendant who was her father. It is not necessary to detail the claims made; it is sufficient to note that the claims arise out of the sexual abuse of the plaintiff by the defendant over a number of years when she was aged between about 4 and 11 years. The defendant pleaded guilty on 1 March 2019 to a very large number of offences charged, and was sentenced later that year to an overall term of imprisonment of 45 years.

2. The plaintiff's solicitor became aware earlier this year that the defendant owned a property in Darlington in County Durham in the United Kingdom. The solicitor became aware that the defendant had appointed somebody as his attorney in order to effect the sale of that property. In those circumstances, the plaintiff's solicitor retained solicitors in England who in turn made an application for a Mareva injunction in the High Court of Justice. That injunction was granted ex-parte on 23 March 2020. The matter is shortly to return to the High Court of Justice with the defendant and his attorney having been notified of the ex-parte injunction that was granted.

3. By notice of motion filed 16 March 2020, the plaintiff seeks leave to reproduce and use in evidence in those proceedings in the United Kingdom three documents being the statement of claim in the present proceedings, statement of particulars filed pursuant to this Court's Practice Note in those proceedings, and the criminal record of the defendant produced by the NSW Police Service in answer to a subpoena that was returnable before this Court on 6 March 2020.

4. It seems to me that there is no difficulty with the plaintiff reproducing and using in the United Kingdom proceedings the statement of claim and the statement of particulars; they are the plaintiff's documents. Leave, however, has been sought for more abundant caution. In my opinion, there is no basis for such leave not being granted.

5. The more significant inquiry relates to the criminal record. At the time the plaintiff's solicitor sought to uplift the subpoenaed documents he was required to give the standard undertaking to the Court which is as follows:

Except with the leave of the Court, I will not, otherwise than for the purpose of the proceedings, divulge, communicate or refer to any person any information obtained from inspection of any document or thing so produced to and inspected by me, unless it is admitted into evidence in the proceedings.

6. The principle arises from the decision of the House of Lords in The Home Office v Harman [1983] 1 AC 280 and has been consistently followed in this jurisdiction ever since.

7. In Wellness Pty Limited v Hamilton-Bond and Ors [2002] NSWSC 1259, Campbell J (as his Honour then was) sitting in the Equity Division of this Court said at [8]:

The test which the Court uses in deciding whether it will grant permission for the documents to be used in some other way when as here the documents have not been read out in open court is that the release of the documents will not be allowed, save in special circumstances and when such use will not occasion injustice to the person who produced the documents under the subpoena.

8. His Honour then cited a number of authorities and went on:

Deciding whether 'special circumstances' have been made out, involves a balancing exercise which takes into account the particular nature of the material produced, the policy underlying the implied undertaking, and any other relevant factors, and asks whether the needs for justice are better served by relieving from, or maintaining, the undertaking.

9. Subsequently, in Premier Travel v Satellite Centres of Australia [2004] NSWSC 864 at [2], Campbell J expressed similar sentiments.

10. In my opinion, leave should be given for the plaintiff to use the defendant's criminal record for the purpose of the United Kingdom proceedings.

11. The affidavit of Gerard Gooden, the plaintiff’s solicitor, of 30 March 2020 discloses that he has twice written to the police: once on 13 March and once on 27 March informing them of his desire to use the criminal record in that way, and indicating that an application would be made to this Court for leave to do so. There has been no response by the police to either of those letters.

12. The defendant has also been served with the notice of motion and supporting affidavits. And, although in custody, has not sought to appear nor given any indication that he opposes the provision of the criminal record to the English court.

13. It should be noted that the undertaking prevents the solicitor from using the documents otherwise than for the purpose of the proceedings. In my opinion, the English proceedings are entirely ancillary to the present proceedings. The Mareva injunction had to be sought from the English courts. Had the property been in New South Wales, such a Mareva injunction would have been made by a notice of motion in the present proceedings, and no issue would have arisen.

14. In addition, the defendant's criminal record is a public document.

15. In my opinion, Mr Gooden’s affidavit establishes the need for the criminal record to be before the English court when the Mareva injunction is further considered by it at a time when the defendant's attorney may well appear in those proceedings. Hitherto, information concerning the proceedings and the defendants record has been given only on information and belief.

16. It seems to me in all the circumstances that all of the factors in the balancing exercise referred to by Campbell J point to the use of the criminal record in the English proceedings. It is difficult to see what prejudice the defendant suffers by that course when the whole basis of the proceedings in this court rely on the matters that resulted in that criminal record.

17. Accordingly, I will make order 1 as sought in the notice of motion.

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Decision last updated: 06 April 2020