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. 1. 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…" 1. 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. 2. 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 1. 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. 2. 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". 3. 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. 4. 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. 5. 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 1. 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. 2. 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. 3. 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." 1. 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. 2. 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. 1. 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." 1. 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 1. 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 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2022