Spedding v State of New South Wales

1. [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. [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:

3. [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:

4. [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. [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

1. [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.

2. [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”.

3. [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.

4. [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.

5. [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

1. [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.

2. [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.

3. [13]

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

4. [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.

5. [15]

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

   1. (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. (2)

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

   3. (3)

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

   4. (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. (5)

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

   6. (6)

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

6. [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:

7. [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

1. [18]

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