(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."
5 I do not think that the rule can be availed of in this Court to obtain an order granting or withholding leave, as required by 31.9(1) UCPR, for proceedings in another Court. The rule prevents evidence in one proceeding being tendered as evidence in a second proceeding, except with the leave of the Court. The Court which must give leave is the Court hearing the second proceeding and dealing with the admissibility of evidence in that proceeding, not the Court which admitted the evidence in the first proceeding. Accordingly, if evidence in proceedings in the Equity Division is to be tendered and received in evidence in the Local Court matter, it will be for the Magistrate in the Local Court matter to grant or withhold leave under UCPR 31.9.
6 That is self-evidently so for a number of reasons, the most important of which is that whether or not such leave is granted will depend upon whether the Magistrate determines that the material sought to be tendered is both relevant and admissible in the proceedings in the Local Court. This Court has really no idea of the relevance or admissibility of this material in the Local Court proceedings nor should it endeavour to form any judgment in that respect. For this Court to form such a judgment would be, in effect, to proscribe the manner in which the Magistrate in the Local Court may or should exercise his or her jurisdiction. In my opinion, Mr Adamson's reliance upon 31.9 UCPR in this Court to preclude evidence being tendered in the Local Court cannot be sustained.
7 Another ground upon which it seems Mr Adamson seeks an order in terms of paragraph 6 is that to permit tender of this material in the Local Court may well prejudice the mind of the Magistrate hearing the matter because the material contains allegations of fraud against Mr Adamson. I do not really think there is any substance to this apprehension. Courts deal with all sorts of allegations and it is the function of the Court to act upon an allegation only if it is proved by satisfactory evidence. The mere making of allegations by one side or another does not, and cannot of itself, poison the Court's mind, as Mr Adamson fears.
8 Paragraph 6 also seeks to restrain the use in the later Court proceedings of documents which have been obtained by discovery in the Equity Court proceedings. As far as Mr Adamson's submissions presently reveal or the affidavits presently reveal, there are no particular documents obtained by discovery which Mr Ede's advisers have given notice they seek to tender in the Local Court proceedings. However, even if there was some possibility that documents obtained by discovery in the Equity Court proceedings would be tendered in the Local Court proceedings this Court, in my opinion, should not now by injunction seek to preclude that course. This Court does not act upon the possibility, and nothing more than the possibility, that in the future someone will commit a contempt of Court. The use of documents obtained on discovery in other proceedings is governed by well known rules of law. Harman v Home Department State Secretary ([1982] 1 All ER 532) is one well-known case and, of course, there are many others.
9 Parties through their legal advisers can be taken to know the consequences in law of making improper use in one set of proceedings of documents obtained by discovery in another set of proceedings. Courts, as I say, do not act in anticipation of possible contempts. It is only where there is a very strong indication of an immediate and threatened contempt that the Court will grant an injunction.
10 I do not think any such immediate threat to make improper use of documents is demonstrated on the evidence in this case.
11 On that discretionary ground, I would decline to grant a quia timet injunction in the terms sought in paragraph 6 restraining the use of documents.
12 Accordingly, for these reasons, I decline to grant any of the relief sought in paragraph 6 of the Notice of Motion.
13 Paragraph 7 of the Motion seeks:
"An order that any scandalous and vexatious matter and any allegations of fraud not supported by a satisfactory affidavit contained in any other documents in these proceedings be struck out."
14 Mr Adamson's submissions have been concerned with striking out various paragraphs of an affidavit of Mr Ede in these proceedings sworn on 7 April 2005, and striking out the whole of an affidavit of Mr Anderson sworn on 7 April 2005. His submissions have not been directed to striking out any paragraph in any of the pleadings filed on behalf of Mr Ede.
15 Mr Adamson seeks to strike out of Mr Ede's affidavit paragraphs 6, 34 to 39, 43 to 46, 47 to 49, 51 and 52, and 57. The objection which Mr Adamson takes to each of these paragraphs is the same, namely, that the matter alleged is irrelevant to any issue pleaded and in any event is deficient in form and particularity.
16 In my opinion, the procedure which Mr Adamson has sought to employ to deal with his objections is quite inappropriate. The objections which he makes are to the admissibility of matter contained in affidavits. That sort of objection is dealt with at the trial by objections to evidence notified between the parties, in accordance with the Court's practice directions.
17 I am not now dealing with the case management of this case. This case has not even been set down for trial. I do not know on this application, nor would it be appropriate for me in this application to investigate, what are the true issues for trial and what is the relevance or otherwise of the matter to which Mr Adamson now objects.
18 Looking through the paragraphs to which Mr Adamson has referred, I get the impression that much of that material is objectionable in form and may be irrelevant. However, it is not for me in this application to make such a decision and to give rulings on evidence when the matter is not before me for trial or for case management.
19 The objections to the affidavit of Mr Ede which Mr Adamson makes will, no doubt, in due course be notified in the proper way to Mr Ede's solicitors by a Notice of Objection and the trial Judge will rule on the objections.
20 The same comments apply to Mr Anderson's affidavit, as the ground for objection is the same, namely, that Mr Anderson's evidence is irrelevant to any issue pleaded.
21 Accordingly, I decline to grant the relief sought in paragraph 7 of the Notice of Motion.