Spedding v State of New South Wales

[2022] NSWSC 503

Supreme Court

New South Wales

Medium Neutral Citation:

Spedding v State of New South Wales [2022] NSWSC 503

Hearing dates:

27 April 2022

Date of orders:

27 April 2022

Decision date:

27 April 2022

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

Order that the documents described in the Schedule be admitted over objection

Catchwords:

EVIDENCE – where plaintiff seeks to rely on evidence filed in other proceedings – whether tender of evidence offends UCPR 31.9 – whether documents subject to Harman undertaking

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 31.9

Cases Cited:

British Thomson-Houston Company Ltd v British Insulated & Helsby Cables Ltd [1924] 2 Ch 160

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Printing Telegraph & Construction Co of Agents AGE & Havas Ltd v Drucker [1894] 2 QB 801

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; (1992) 110 ALR 685; 38 FLR 217; [1992] FCA 72

Category:

Procedural rulings

Parties:

William Harrie Spedding (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
A Canceri with T O’Rourke (Plaintiff)
A Williams with B Searson (Defendant)

Solicitors:
O’Brien Criminal and Civil Solicitors (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2019/00289937

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Mr Spedding seeks to tender a large series of documents. For present purposes it is sufficient to describe them in general terms as documents produced for or in the course of two sets of proceedings in the Family Court of Australia. The documents are particularised in the Schedule attached to these reasons. One of the documents is an affidavit sworn by Mr Spedding in litigation in which he was a party.

2. The tender of the documents is opposed by the State of New South Wales upon two bases. The first is that they offend UCPR 31.9, which is as follows:

31.9 Earlier evidence in other proceedings

(1) In any proceedings, evidence taken, or an affidavit filed, in other proceedings may not be used as evidence, saving all just exceptions and unless the court orders otherwise.

(2) Leave may not be granted under subrule (1) except to allow the evidence taken, or affidavit filed, in the other proceedings to be used in relation to the proof of particular facts.

3. The second is that they are subject to an implied undertaking that the documents shall not be used for any purpose other than prosecution of the proceeding in or for which the document was created: Harman v Secretary of State for the Home Department [1983] 1 AC 280. In Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, Hayne, Heydon and Crennan JJ described the obligation in these terms:

“[96] Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…”

4. Mr Spedding wishes to tender these documents in aid of his contention that they constitute material that his prosecutor on historical sexual assault charges in the District Court should have been aware of and which should relevantly have informed the decision to prosecute him. Mr Spedding maintains that these documents, in combination with other circumstances, demonstrate that his prosecutor could not have had reasonable or probable cause to commence or maintain the proceedings against him and that the prosecution was demonstrably malicious.

5. Importantly, Mr Spedding does not seek to rely upon any of these documents as proof of the facts to which they refer. He is content to limit his reliance upon them as material that was, or should have been, in the hands of his prosecutor at the time the criminal proceedings were commenced against him and throughout the period over which they were maintained.

UCPR 31.9

6. This rule presupposes the general inadmissibility of testimonial evidence called by a party in previous proceedings: British Thomson-Houston Company Ltd v British Insulated & Helsby Cables Ltd [1924] 2 Ch 160. The rule does not permit the court to grant leave to use the evidence of witnesses in other proceedings between other parties on a similar issue: Printing Telegraph & Construction Co of Agents AGE & Havas Ltd v Drucker [1894] 2 QB 801.

7. In order to be within the rule the evidence must have been in proceedings between the same parties or their privies, must otherwise be admissible and must go to the same fact situation in each set of proceedings, although the relief sought may differ. However, those limitations appear to draw their strength from the requirement in rule 31.9(2) relating to use “in relation to the proof of particular facts”.

8. In the present proceedings, Mr Spedding sues the State of New South Wales on a series of causes of action including malicious prosecution. Mr Spedding maintains that his prosecution on a series of alleged historical sex offences was commenced and maintained without reasonable or probable cause. One of the ways in which he seeks to establish this is by reference to the fact that the allegations of sexual abuse were first raised in the context of family law proceedings between him and his wife in which it was alleged that he had sexually abused two of his children. Mr Spedding maintains that a comparison between the evidence led in support of those allegation at that time and the later versions of events given by the alleged victims, among other things, as well as the doubts cast upon the veracity of the complaints evident in the judgment of his Honour Gee J, support the contention that any prosecutor should have held significant doubts about the viability of the prosecution.

9. In that setting it will be obvious that Mr Spedding does not wish to tender the record of the proceedings in the Family Court or affidavits or other documents “in relation to the proof of particular facts” that might be referred to or drawn from the various sources in question. The truth or otherwise of any issue contested or adjudicated in the Family Court is not directly in issue in these proceedings. Far from that, Mr Spedding seeks only to show that the documents he wishes to tender were in existence and were available for use in the assessment of the charges against him by his prosecutor. Mr Spedding tenders the documents as facts, not as documents capable of being used to prove particular facts.

10. In any event, the two sets of proceedings in the Family Court are not proceedings between the same parties or their privies: the State of New South Wales was not a party in those matters and is otherwise entirely independent of anyone who was.

Harman

11. Mr Spedding’s tender of the documents is also not caught by any so-called Harman undertaking. This is not a case of potential misuse or abuse of material that has been provided or disclosed to a party under compulsion of litigation by an opponent in the same proceedings. The Family Court matters are obviously separate and discrete pieces of litigation. The submission that some implied undertaking applies to the use of the material that came into existence in other proceedings should be rejected.

12. However, there is a more fundamental problem with this submission. All of the material that Mr Spedding wishes to tender was utilised in the Family Court proceedings. It lost any character that it may otherwise have had as material impliedly subject to an obligation not to publish or use it.

13. In Hearne v Street at [98], the majority adverted to this as follows:

“[98] It may be noted that the general law protection is often buttressed by protection from rules of court. Thus until 15 August 2005, the New South Wales Supreme Court Rules 1970, Pt 65 r 7, prevented strangers to litigation from having access to documents or things on the court file without the leave of the Court: see also Practice Note No 97. From 1 March 2006, Practice Note SC Gen 2 prescribed procedures in relation to access to Supreme Court files. The most important paragraphs are:

‘6. Access to material in any proceedings is restricted to parties, except with the leave of the Court.

7. Access will normally be granted to non-parties in respect of:

• pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;

• documents that record what was said or done in open court;

• material that was admitted into evidence; and

• information that would have been heard or seen by any person present in open court,

unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist."

14. It is not suggested that this rule applies directly to the material in question in the Family Court. However, as a matter of practical reality, all of the material in question relates to proceedings that have been concluded, no confidentiality orders having been made in respect of any of the material. The documents include those that record what was said in open court and material admitted into evidence, all of which could have been seen or heard by any person present in open court.

15. In general terms, the following considerations are relevant in cases where it is arguable that the Harman restriction applies:

1. what is the nature of the document and information in the document (for example how private and/or confidential the contents of the document are);

2. what are the circumstances under which the document came into existence;

3. whether any prejudice might be occasioned to the author of the document if it is permitted to be used for another purpose;

4. whether the document pre-dated the litigation or was created for the purpose of litigation and hence was intended eventually to enter the public domain;

5. how the document came into the hands of the party seeking leave to use the document;

6. the contribution that the document might make to achieving justice in the second proceedings.

16. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; (1992) 110 ALR 685; 38 FLR 217; [1992] FCA 720, the contribution that the document might make to achieving justice in the second proceedings was called “perhaps the most important [consideration] of all” per Wilcox J at [26] as follows:

“[26] … The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.”

17. In the present case, none of these matters, if raised on a hypothetical application to be relieved of the Harman undertaking, would appear to operate against permitting their use. The documents quite obviously have the potential to make an essential and fundamental contribution to Mr Spedding’s litigation. Moreover, for reasons already referred to, the tender seeks to establish the existence of the documents as the important fact, not the resolution of any dispute concerning the facts to which they refer.

Conclusion

18. It was for these reasons that I permitted Mr Spedding to tender the documents referred to in the Schedule.

SCHEDULE

Joint Court Book tab number	Nature of document/s	Date/period
79	Affidavit of the Plaintiff in Kearns v Kearns	6 October 1988
75	Affidavit of the Plaintiff in Kearns v Kearns	12 May 1988
50	Affidavit of Cathryn Spedding in Spedding v Spedding	26 May 1987
104	Affidavit of Cathryn Kearns in Spedding v Spedding	15 August 1990
103	Affidavit of the Plaintiff in Spedding v Spedding	24 May 1990
51	Affidavit of the Christine Guthrie in Spedding v Spedding	26 May 1987
59	Affidavit of the Plaintiff in Spedding v Spedding	24 July 1987
65	Affidavit of Cathryn Spedding in Kearns v Kearns	19 January 1988
43	Affidavit of Cathryn Spedding in Kearns v Kearns	28 January 1987
76	Affidavit of Cathryn Spedding in Kearns v Kearns	26 August 1988
61	Affidavit of Christine Guthrie in Kearns v Kearns	14 January 1988
100	Chronologies of allegations	Unknown
92	Affidavit of the Plaintiff in Kearns v Kearns	4 April 1989
62	Affidavit of Daniel Kearns in Kearns v Kearns	14 January 1988
64	Affidavit of Hilary Wilson in Kearns v Kearns	18 January 1988
80	Affidavits of Margaret Myers and Lesley Turner in Kearns v Kearns	6 October 1988
84	Affidavit of Edna Hillsley in Kearns v Kearns	17 October 1988
39	Affidavit of Irene Kearns in Kearns v Kearns	13 January 1987
69	Affidavit of Irene Kearns in Kearns v Kearns	20 January 1988
73	Affidavit of Irene Kearns in Kearns v Kearns	10 May 1988
70	Affidavit of Daniel Kearns in Kearns v Kearns	23 March 1988
71	Affidavit of Cathryn Spedding in Kearns v Kearns	25 March 1988
74	Affidavit of Dr Lim in Kearns v Kearns	11 May 1988
60	Letter of Dr L W Lambert	4 January 1988
40	Affidavit of Dr Hazeldine in Kearns v Kearns	23 January 1987
63	Affidavit of Daniel Kearns in Kearns v Kearns	15 January 1988
44	Affidavit of Daniel Kearns in Kearns v Kearns	28 January 1987
41	Affidavit of Lesley Hessey in Kearns v Kearns	23 January 1987
42	Affidavit of Lucknel Pearce in Kearns v Kearns	23 January 1987
66	Affidavit of Bronwyn Cintio in Kearns v Kearns	19 January 1988
67	Affidavit of Anne Kennedy in Kearns v Kearns	19 January 1988
102	Judgment in Kearns v Kearns by his Honour Justice Gee	17 May 1989
281	Pre-trial transcript	24 February 2017
300	Trial Transcript	20 February 2018
301	Trial Transcript	21 February 2018
303	Trial Transcript	26 February 2018
307	Trial Transcript	5 March 2018
309	Judgment on the Application by the Plaintiff for no case to answer	5 March 2018
310	Revised Transcript on Plaintiff’s application for costs	5 March 2018
304	Transcript of Trial	27 February 2018
278	Pre-trial transcript	9 February 2017
279	Pre-trial Transcript	14 February 2017
305	Trial Transcript	28 February 2018
54	Affidavit of Irene Kearns in Kearnsv Kearns	17 June 1987
57	Affidavit of Daniel Kearns in Kearns v Kearns	1 July 1987
45	Letter from Joanne Griffith of the Child Protection Unit at Ballarat	3 March 1987
58	Undertaking in Kearns v Kearns	1 July 1987
85	Transcript of proceedings, Kearns v Kearns	17 October 1988
86	Transcript of proceedings, Kearns v Kearns	18 October 1988
87	Transcript of proceedings, Kearns v Kearns	19 October 1988
88	Transcript of proceedings, Kearns v Kearns	20 October 1988
78	Affidavit of Lesley Norman Hessey in Kearns v Kearns	22 September 1988
81	Affidavit of Joanne Mary Griffith in Kearns v Kearns	7 October 1988
83	Affidavit of Margaret Ruth Jarvis in Kearns v Kearns	8 October 1988
82	Affidavit of Lucknel Avril Pearce in Kearns v Kearns	7 October 1988
77	Affidavit of Lucknel Avril Pearce in Kearns v Kearns	19 September 1988
89	Affidavit of Magie Lewis-Borgwardtin Kearns v Kearns	20 October 1988
106	Affidavit of Daniel Kearns in Kearns v Kearns	19 July 1991
105	Affidavit of Daniel Kearns in Kearns v Kearns	11 June 1991
72	Further Affidavit of Dr Ann Banning in Kearns v Kearns	6 May 1988
101	Document titled “Involvement of Christine Guthrie” in Kearns v Kearns	12 May 1989
99	Document titled “Chronology and Statement of Material Facts” in Kearns v Kearns	9 May 1989
98	Affidavit of Senior Constable Peter Jeffrey Mills in Kearns v Kearns,	26 April 1989
94	Affidavit of Dr Brent G.H. Waters in Kearns v Kearns	20 April 1989
96	Affidavit of Judith Mary Houston in Kearns v Kearns	21 April 1989
95	Affidavit of Dr J.W. Shand in Kearns v Kearns	20 April 1989
93	Affidavit of S.P. Grosvenor in Kearns v Kearns	5 April 1989
97	Affidavit of P.M. Innes in Kearns v Kearns	21 April 1989
91	Affidavit of Vera Zuylen in Kearns v Kearns	6 February 1989
107	Affidavit of Kevin Zibell in Kearns v Kearns	18 October 1991
68	Affidavit of Michael J Dunne in Kearns v Kearns	19 January 1988
306	Trial Transcript	1 March 2018
277	175B - Transcript of the evidence of Leonnie Robbins and Janelle Dalliday	8 February 2017

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Decision last updated: 30 June 2022