Colbert (a pseudonym) v Trustees of the Christian Brothers
[2024] VSC 372
•3 April 2024
| IN THE SUPREME COURT OF VICTORIA | Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2020 03448
BETWEEN:
| DOMENIC COLBERT (A PSEUDONYM) | Plaintiff |
| v | |
| TRUSTEES OF THE CHRISTIAN BROTHERS | Defendant |
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JUDICIAL REGISTRAR: | Baker JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 December 2023 |
DATE OF RULING: | 3 April 2024 |
CASE MAY BE CITED AS: | Colbert (a pseudonym) v Trustees of the Christian Brothers |
MEDIUM NEUTRAL CITATION: | [2024] VSC 372 |
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PRACTICE AND PROCEDURE – Discovery – Subsequent discovery application following earlier application resolved by agreement – No change in circumstances – Utility of further documents when documents relevant to foreseeability have already been discovered – Production of documents affected by National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) – Proportionality, utility and burden or cost of further discovery – Volunteer Fire Brigades Victoria Inc v Country Fire Authority [2016] VSC 573.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Willshire of Counsel for the plaintiff | Arnold Thomas & Becker |
| For the Defendant | Mr C Morshead of Counsel for the defendant | Carroll & O’Dea Lawyers |
TABLE OF CONTENTS
A.. Introduction
B.. The proceeding and application
C.. The evidence and procedural history
D.. Applicable principles
E... The categories in dispute
E.1 Category A
E.1.1 National Redress Scheme documents
E.2 Category B
E.3 Category C
E.4 Category D
E.5 Category E
E.6 Category F
E.7 Category G
E.8 Category H
E.9 Category I
E.10 Category J
E.11 Category K
E.12 Category L
E.13 Category M
E.14 Category N
E.15 Category O
E.16 Category P
E.17 Category Q
F... Conclusion and costs
JUDICIAL REGISTRAR:
A Introduction
The plaintiff in this proceeding applies by summons dated 24 October 2023 for orders requiring the defendant to discover 17 categories of documents, and file and serve a further affidavit of documents. The application was referred to me for hearing and determination in accordance with a referral pursuant to r 84.04(1) of the Supreme Court (General Civil Procedure) Rules 2015 made by Ierodiaconou AsJ on 26 October 2023.
For the reasons set out below, I have concluded that orders should be made requiring further discovery (or confirmation of the further discovery already provided in a forthcoming affidavit of documents) in relation to 7 of the 17 categories sought, but that otherwise the plaintiff’s application should be dismissed.
B The proceeding and application
In his amended statement of claim dated 18 December 2023, the plaintiff claims damages from the defendant in connection with physical and sexual abuse that he alleges he experienced at St Paul’s Technical College in Ballarat in the early 1950s, while he was in years 7 and 8.[1] The period of time raised as relevant by the plaintiff in his pleading is 1952 to 1955. He alleges that within that period he was abused by two brothers who taught at the school, Brother North and Brother Archer,[2] who he says were employees or agents of, or in an equivalent relationship with, the defendant.[3]
[1]Amended statement of claim, [8].
[2]Ibid, [7].
[3]Ibid, [4].
The plaintiff alleges that the leadership of the Christian Brothers ‘St Patrick’s Province’ at the time (comprised in part of the State of Victoria Christian Brothers Operations, conducted by a Provincial Leader and Provincial Council)[4] was responsible for the management and operation of the school through the appointment and delegation of power to a principal and school council.[5] He alleges that the abuse occurred in the course of Brother North and Brother Archer’s employment or engagement with the leadership at the school, and that therefore the defendant is vicariously liable for it.[6]
[4]Ibid, [2].
[5]Ibid, [3].
[6]Ibid, [11].
The plaintiff alleges that prior to the alleged abuse of the plaintiff, the Provincial Leader and Provincial Council were informed about complaints made against Christian Brothers concerning the sexual abuse of children, and that they made decisions about such complaints of abuse occurring at Christian Brothers institutions.[7]
[7]Ibid, [9].
The plaintiff pleads that the defendant knew or ought to have known about his alleged abuse,[8] and that it breached its duty of care by failing to take a number of steps such as implementing complaint systems at its schools, acting on knowledge of abuse occurring within Christian Brothers institutions, and implementing systems and policies at its schools aimed at enabling the notification of, and the prevention of, abuse at its schools.[9]
[8]Ibid, [10].
[9]Ibid, [14].
The defendant does not admit the abuse alleged by the plaintiff, denies that it knew or ought to have known of it, and denies that it was negligent or is vicariously liable for the conduct of Brother North or Brother Archer.
On 25 November 2022, the defendant issued a summons seeking orders that the proceeding be permanently stayed. The preparation of this application evidently involved some complexity. Orders were made by consent in early 2023 for the provision of further discovery to resolve an application issued by the plaintiff, and for the service of interrogatories, affidavit material and submissions in connection with the stay application. The stay application was originally listed for hearing on 24 July 2023 and then 24 November 2023, however so far each hearing date has been vacated and it has not yet been heard. For obvious reasons, this protracted timetable has had the effect of significantly delaying the trial, or at least the hearing of the stay application, in this proceeding.
The plaintiff’s present summons was issued about a month before the most recent hearing date that had been allocated for the stay application. In the course of directions hearings concerning that application, the parties appeared to be somewhat at odds in terms of how the various outstanding issues in the proceeding would interact. The plaintiff was interested to ensure that the hearing of the stay application would not be further delayed, and said that he would essentially accept the risk that as a result of the timing of this discovery application, there might be documents he had sought that would be unavailable to be relied upon in the course of the stay application. The defendant took a different view, suggesting that to the extent the discovery application was made in connection with the issues in the stay application, it should be heard and determined first, since it would likely create difficulties if there remained disputes around the relevance of certain categories of documents at the time the stay application was heard.
To address this concern, and to attempt to allow both applications to be heard without further adjournments, I asked the parties to confer and seek to split the discovery application into two parts, identifying the categories of documents sought that the parties considered were related to or would be referred to in the course of the stay application (the resolution of which was therefore potentially time-sensitive), and those which would really only relate to the parties’ cases at trial (and could therefore be determined at a somewhat later date if necessary).[10]
[10]Orders of 3 November 2023.
It appears that the parties were unable to pursue this approach, and as a consequence arrangements were subsequently put in place for the full scope of the plaintiff’s discovery application to be heard. I proceed on the basis that the application is made both in support of the plaintiff’s position on the stay application as well as the plaintiff’s case at trial. As it is the plaintiff’s application, the onus ultimately remains on him to establish the existence and relevance of each of the categories of documents he seeks.
C The evidence and procedural history
The parties filed and referred to a number of affidavits in support of this application, relevantly:
(a)an affidavit of the defendant’s solicitor, Mr Joshua Dale, sworn on 7 September 2023;
(b)an affidavit of the plaintiff’s solicitor, Angela Di Carluccio, affirmed on 14 September 2023;
(c)an affidavit of Ms Di Carluccio affirmed on 20 September 2023;
(d)an affidavit of Ms Di Carluccio affirmed on 24 October 2023;
(e)an affidavit of Ms Di Carluccio affirmed on 2 November 2023 (which appears to have been incorrectly dated 14 September 2023);
(f)an affidavit of Mr Dale sworn on 14 December 2023; and
(g)an affidavit of Ms Di Carluccio affirmed on 16 December 2022, in support of the plaintiff’s previous discovery application.
The plaintiff also had filed three affidavits in September 2023 in support of his position on the stay application (one affirmed by the plaintiff personally and two others from relevant witnesses), which were referred to briefly by counsel for the plaintiff in the course of this application and in Ms Di Carluccio’s 24 October 2023 affidavit, but which are otherwise not particularly relevant to this present dispute.
Both parties also filed written submissions and made oral submissions in support of their positions on the present application.
The affidavit material identifies that the background to this application is relevantly as follows:
(a)The proceeding was commenced on 31 August 2020. An initial timetable was set on 15 February 2021, which provided for the parties to complete discovery by 25 June 2021. The defendant’s affidavit of documents was filed on 25 June 2021.
(b)The plaintiff originally applied for specific discovery from the defendant by summons filed on 22 November 2022. The orders sought in that summons were as follows:
1.Within 7 days, the Defendant provide for inspection the following documents:
Brother Frederick Patrick Borromeo Archer (‘Br Archer’) and Brother Charles Les Ferdinand North (‘Br North’)
a.Br Archer and Br North’s complete personnel file including but not limited to:
i.documents pertaining to Br Archer and Br North whilst they were at the Christian Brother Noviate;
ii.documents pertaining to Br Archer and Br North’s transfers to and from various schools and instructions, including the reasons for various transfers, and all prior communications between the relevant parties surrounding the transfers;
iii.all visitation reports and provincial council minutes referring to Br Archer and Br North, including the sections pertaining to Br Archer and Br North in an unredacted form;
iv.Br Archer and Br North’s psychiatric history and treatment including referrals, medical reports, progress letters and any encompass records; and
v.necrology documents relating to to Br Archer and Br North.
b.All documents containing any report, statement, complaint, allegation, warning, concern or investigation, including internal investigations as well as any outcome or findings of investigations, of sexual abuse and/or physical abuse committed or alleged to be committed by Br Archer and Br North and whether they relate to abuse which was alleged or proven; whether the abuse occurred before or after the Plaintiff’s alleged abuse and notwithstanding the location of the abuse. The documents are to include:
Civil claim documents including:
i.Filed and unfiled Statements of Claim that reveal allegations of abuse by Br Archer and Br North;
ii.Defences to the Statements of Claim produced under (2a);
iii.The Statement, Affidavit, Statutory Declaration, letter or other primary statement or complaint outlining the allegations of abuse by Br Archer and Br North;
iv.Referrals to the Melbourne Response, Towards Healing, the National Redress Scheme and/or Royal Commission and/or any Church Schemes including:
a)The Statement, Affidavit, Statutory Declaration, letter or other primary statement or complaint outlining the allegations of abuse by Br Archer and Br North;
b)Any other document containing the applicant’s complaint of abuse by Br Archer and Br North;
c)Any acceptance letter from the Christian Brother’s (or relevant person) to the applicant; Any letter from the Christian Brother’s (or any relevant person) to the applicant containing the Christian Brother’s decision, determination and/or findings (as applicable) with respect to the applicant’s claim.
c.All documents, including file notes, letters, memoranda, reports, minutes or like documents containing disciplinary or proposed disciplinary action or internal considerations against Br Archer and Br North for sexual abuse committed or alleged to be committed by Br Archer and Br North and whether they relate to abuse which was alleged or proven, whether the abuse occurred before or after the Plaintiff’s alleged abuse and notwithstanding the location of the abuse.
d.All documents referring to Br Archer and Br North.
e.Further documentation pertaining to the comments made in document 23 of the Defendant’s sworn Affidavit of Documents where it states that the ‘only weakness lies is the limp and confused approach by Br Archer to his teaching.’ This includes documents containing details of why Br Archer’s teaching was described in such a way, correspondence pertaining to the issue and any reviews of Br Archer and his teaching.
f.Further documentation pertaining to the comments made in documents 23 and 24 of the Defendant’s sworn Affidavit of Documents regarding Br North’s regret in profession and finding his life tedious and frustrating.
St Paul’s Technical College in Ballarat Victoria (‘the school’)
g.All documents containing any report, statement, complaint, allegation, warning, concern or investigation, including internal investigations as well as any outcome or findings of investigations, of sexual abuse and/or physical abuse committed or alleged to be committed by a teacher, a Christian Brother and any other person put in a position of power at the school, and whether they relate to abuse which was alleged or proven; whether the abuse occurred before or after the Plaintiff’s alleged abuse and notwithstanding the location of the abuse. The documents are to include:
Civil claim documents including:
i.Filed and unfiled Statements of Claim that reveal allegations of abuse that occurred at the school;
ii.Defences to the Statements of Claim produced under 11(a);
iii.The Statement, Affidavit, Statutory Declaration, letter or other primary statement or complaint outlining the allegations of abuse that occurred at the school;
iv.Referrals to the Melbourne Response, Towards Healing, the National Redress Scheme and/or Royal Commission and/or any Church Schemes including:
a)The Statement, Affidavit, Statutory Declaration, letter or other primary statement or complaint outlining the allegations of abuse that occurred at the school;
b)Any other document containing the applicant’s complaint of abuse that occurred at the school;
c)Any acceptance letter from the Christian Brother’s (or relevant person) to the applicant;
d)Any letter from the Christian Brother’s (or any relevant person) to the applicant containing the Christian Brother’s decision, determination and/or findings (as applicable) with respect to the applicant’s claim.
h.All documents, including file notes, letters, memoranda, reports, minutes or like documents containing disciplinary or proposed disciplinary action or internal considerations regarding abuse that is alleged at the school or sexual abuse committed or alleged to be committed at the school and whether they relate to abuse which was alleged or proven, whether the abuse occurred before or after the Plaintiff’s alleged abuse and notwithstanding the location of the abuse.
i.Full class lists for the period the Plaintiff attended the school. These documents should be discovered in an unredacted form.
j.Documents detailing classes or school activities offered on weekends at the school including, but not limited to, those relevant to document number 24 of the Defendant’s sworn Affidavit of Documents where it states that ‘a little initiation into Art and Music is offered on Saturday mornings under the direction of Br B Archer and F North…’. including any documents that include the following:
i.dates that the programs and/or classes ran including which day of the week;
ii.who supervised the programs and/or classes;
iii.which students attended the programs and/or classes; and
iv.who approved the programs and/or classes to run outside of regular school hours.
k.All records of prior, contemporaneous and ex post facto complaints about child sexual abuse by Christian Brothers within the St Patrick’s Province of the Christian Brothers.
2.…
(c)On 25 November 2023, the defendant issued its permanent stay application.
(d)The parties engaged in negotiations around the plaintiff’s discovery requests, which ultimately resulted in that application resolving by agreement. The parties submitted consent minutes to the Court in January 2023, which resulted in orders being made on 27 January 2023 as follows:
Plaintiff’s summons filed 22 November 2022
…
3.On or before 20 March 2023, the defendant is to file and serve a supplementary affidavit of documents discovering:
(a)Letters of demand, statements of claim, defences, statements of the complainant and medico-legal evidence in relation to civil complaints made against St Paul’s Technical School (redacted to remove names and identifying features of the individual complainants as well as any family members or other students / third party minors at the school or otherwise);
(b)All documents relating to any disciplinary or proposed disciplinary action in relation to any abuse alleged to have occurred at the school, limited to references found in:
i.Handwritten Provincial Council Minutes between 1953 and 1986;
ii.Digitised Provincial Council Minutes between 1984 and 2007; and
iii.Digitised personnel files of Brothers who have taught at the school at any time.
(c)Letters of demand, statements of claim, defences, statements of the complainant and medico-legal evidence in relation to civil complaints made alleging abuse prior to 1955 in the St Patrick’s Province, limited to:
i.Civil proceedings in Western Australia, Victoria and Tasmania where digitised files are available; and
ii.Any hardcopy and/or digital file relating to any Victorian proceeding,
redacted to remove names and identifying features of the individual complainants as well as any family members or other students / third party minors not a party to the claim or otherwise.
…
(e)The defendant served a supplementary affidavit of documents on 21 March 2023.
(f)Subsequently, on 25 July 2023, the plaintiff wrote to the defendant concerning issues related to discovery. In this correspondence, the plaintiff requested that the defendant confirm that certain categories of documents had already been searched and that any relevant documents had been provided in the course of the defendant’s discovery to date, and requested that the defendant also make discovery of ‘coded complaints histor[ies] of any complaints of physical and or sexual abuse within the Christian Brothers’ for eight sets of locations and date ranges (which appear to partially, but not completely, correspond with the places and times referred to in several of the categories sought in the present discovery application).
(g)The defendant responded by letter dated 1 August 2023, providing answers to the queries raised by the plaintiff, and providing one further visitation report that had been located. In relation to the plaintiff’s request for further discovery, the defendant’s solicitor wrote:
In relation to the Coded Complaint Histories you have requested under the heading ‘Further Request for Discovery’, we confirm our instructions that our client has completed discovery in these proceedings, including pursuant to the Order dated 27 January 2023. We will not be producing any complaint histories requested as they do not exist and would need to be created for the purposes of your request. We otherwise object to engaging in any further discovery on the basis of oppression (noting the earlier orders regarding further discovery which were already agreed and complied with) and otherwise we do not see how your requests are relevant to the issues in dispute.
Further, the request for Coded Complaint Histories does not arise out of any matters in the Supplementary Affidavit of Documents served by our client on 23 March 2023. In that respect, no reasonable explanation has been provided as to why your client could not have raised this as a particular issue in his summons father on 22 November 2022 nor as to why it is only being raised at a late stage prior to the hearing of the permanent stay application.
(h)There appears to have been no further response to this letter from the plaintiff.
Although not referenced in the affidavit material, in the context of arguments concerning delay and the timing of this application, it is also relevant to note that to date this proceeding has been allocated three different trial dates that have been vacated due to the proceeding not being ready to proceed.
Factual material relevant to each of the categories in dispute is discussed below. For present purposes, though, it is relevant to note that the evidence indicates that the Christian Brothers were organised into different provinces over time. Relevantly for the present application, between 1885 and May 1953 there was one Australasian Province of the Christian Brothers, after which it was divided into two separate provinces. Between May 1953 and November 1967, the St Patrick’s Province covered Victoria, Tasmania, South Australia, and Western Australia.
The defendant’s evidence also establishes that it was responsible for the management and Operation of St Paul’s between 1948 and 1995. After 1995, St Paul’s was amalgamated with two other schools to form Damascus College Ballarat. This school is operated by Damascus College Ltd, which is a separate and unrelated entity to the defendant.
The evidence also indicates that documents that are of interest to the plaintiff are stored in a number of different locations and manners. The defendant maintains archives in Parkville, and there was no dispute that those documents fall within its control. Other documents are held in Congregation Archives in Dublin. The evidence indicates that these are not held or controlled by the defendant. Further, documents held by or at St Paul’s would now be controlled by Damascus College Ltd following its amalgamation.
D Applicable principles
The applicable legal principles were not relevantly in dispute between the parties, and are well-established. It is uncontroversial that a power to make the orders sought by the plaintiff is be found in r 29.08(2) of the Rules, or else in s 55(1) of the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’).
The touchstone for considering whether a document is discoverable is relevance. A document is relevant if it could rationally affect the assessment of the probability of a fact in issue in the proceeding.[11]
[11]Evidence Act 2008 (Vic), s55(1).
In considering the plaintiff’s application, the Court is required[12] to seek to give effect to the overarching purpose in s 7 of the Civil Procedure Act, ‘to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute’.
[12]Civil Procedure Act 2010 (Vic), s8(1) (‘Civil Procedure Act’).
Particularly at this late stage in the proceeding, the authorities emphasise the need for discovery exercises to remain proportionate to both the issues in dispute and the burden or cost likely to be imposed by them. The issue was expressed by J Forrest J in Volunteer Fire Brigades Victoria Inc v Country Fire Authority (‘Volunteer Fire Brigades’)[13] as follows:
The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.
It is also important to note in the discovery context that there is a continuing obligation under s 26 of the CPA on a party to discover any document of which it becomes aware, that is of any significance in the dispute …
Finally, where discovery potentially requires extensive trawling through databases and emails, a court must be conscious of the words of the High Court in Armstrong[14] and obligations under the CPA. As I said in Liesfield,[15] the days of the search for the smoking gun are gone. The key is ensuring the discovery exercise is proportionate not only to the relevance of the issues, but also to the likely cost to be incurred bearing in mind that it is the trial that is the focus of the proceeding and not the discovery fight.[16]
[13][2016] VSC 573 (‘Volunteer Fire Brigades’).
[14]Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Limited & Ors (2013) 250 CLR 303.
[15]Liesfield v SPI Electricity Pty Ltd & Ors (2013) 43 VR 493.
[16]At [34]-[36].
E The categories in dispute
The parties’ positions on each of the categories sought by the plaintiff, and my conclusions in relation to each, are as follows.
E.1 Category A
The plaintiff’s first category sought the following:
All complaints received in relation to child abuse alleged in or prior to 1955 by the Christian Brothers in any state and territory in Australia, whether the alleged perpetrator is identified or not, including but not limited to current claims, prior claims, litigated civil claims, non-litigated civil claims, Towards Healing disclosures, Towards Healing claims, National Redress Scheme disclosures, National Redress Scheme claims, other church scheme disclosures, other church scheme claims, referrals to the Royal Commission, referrals any state commissions, referrals to CCI, referrals to any other insurers of the Christian Brothers, referrals to police, and any other disclosure or referral whether it amounts to any type of claim or not.
The plaintiff’s position concerning this category was that the defendant’s discovery to date remains deficient, as the complaints produced so far only cover civil proceedings in Western Australia, Victoria and Tasmania (and, it seems, also limited to digitised rather than hard-copy records for jurisdictions other than Victoria). He also noted that the material discovered to date does not include documents from the National Redress Scheme. It appears that both of those complaints arise, at least in part, because that position reflects the terms the parties agreed to in the previous discovery orders.
The defendant opposed this category because it considers that it duplicates the request made in the plaintiff’s previous discovery application, which was resolved by a compromise in January 2023. Moreover, it says that the remaining pre-1955 complaint files that have not already been provided to the plaintiff will largely be hard-copy documents which do not relate to the St Patrick’s Province. Mr Dale estimates that locating, reviewing and producing those known hard-copy complaint files would require 611-705 hours, and at least an additional 2,000 hours would be required if the defendant was required to extend its searches to cover all records it holds between 1895 and 1955.
In addition, the defendant objects specifically to the production of National Redress Scheme documents referred to in this category, on the basis that the applicable legislation prohibits their disclosure in this way. The defendant notes in this regard that it has never received a National Redress Scheme notification relating to Archer or North, so presumably any material that might respond to this category could relate only to issues of foreseeability and knowledge.
I accept that this category may contain documents that will be relevant to the case that the plaintiff intends to pursue at trial concerning the defendant’s knowledge and the foreseeability of the relevant risks. Plainly, if is it established that the defendant was aware of prior complaints concerning sexual abuse by its members, then this may affect the findings that the Court would be able to make concerning the allegations of foreseeability in this case. However, in the circumstances of this application, the relevance of the documents must be assessed alongside the likely utility of the documents to the determination of the proceeding, the burden likely to be created by any order that might be made, and the history of the dispute leading up to this application.
Balancing those factors here, I conclude that an order should not be made requiring further discovery in the form of this category, for the following reasons.
First, the category materially duplicates, and expands upon, the scope of the discovery sought by the plaintiff in his previous discovery application. That application was resolved by agreement between the parties in January 2023, reflected in the consent orders made that month which led to the more confined discovery of complaint files referred to above. That compromise was reached after the defendant’s stay application had been issued, and the plaintiff has not identified any other change in circumstances in the affidavit material or submissions relied on for this application as to why the discovery now being sought could not have been pursued back then.
I note the statements in the plaintiff’s solicitor’s affidavit material that:
The Plaintiff compromised on its requested discovery in [an] attempt to come to an agreement with the Defendant and avoid costs, delays and the Courts time. The compromise was not intended, nor will it ever be intended to discharge the Defendant from their continuing discovery obligations.[17]
This may be so, but it does not detract from the fact that it was a compromise freely entered into by the plaintiff, advised by his legal representatives, to resolve the very issue that is now sought to be reagitated.
[17]Di Carluccio 24 October 2023 affidavit at [14].
I also note the plaintiff’s submission that the compromise was reached in an attempt to reduce costs and narrow the issues in dispute, which is a course the Court should encourage. I understood that this submission was directed towards a suggestion that the Court should not penalise or disadvantage a party subsequently who sought to compromise in this way. If this is the plaintiff’s argument, I disagree. The plaintiff had issued his application and was entitled to have it determined. He was in control of how much he was willing to compromise on that application, consistent with his overall interests in the proceeding. As much as there is an interest in ensuring that the parties seek to negotiate and narrow the scope of any dispute,[18] there is equally an interest in the finality of dispute-resolution achieved through the Court, and the efficient use of the parties’ and the Court’s resources. Indeed, the need for parties to be conscious of this latter consideration is demonstrated by the substantial resources that have been occupied by the present application.
[18]As is reflected in the overarching obligations contained in the Civil Procedure Act.
In the absence of any evidence suggesting there has been a change in circumstances that warrants this area of discovery being re-opened, in my view there is no unfairness in the plaintiff being held to the compromise that he had previously agreed to. That approach best promotes the finality of the resolution of that dispute, the efficient use of the parties’ costs, and the responsible use of finite Court resources.
Second, the defendant has put on specific evidence as to the time likely to be required to respond to this category, which has not been substantively displaced by the plaintiff’s representatives other than by submitting that they do not accept the defendant’s calculations. While I can accept that there inevitably a degree of approximation and estimation involved in producing the kinds of figures set out in Mr Dale’s affidavit, on any view the figures in the hundreds or thousands of hours will represent a very substantial allocation of resources for the defendant. I accept that this category will impose a substantial burden on the defendant, whatever the precise calculation of hours turns out to be.
Third, on balance I consider that this imposition will be disproportionate to the likely benefit that could be realised by requiring discovery of this category. Although the plaintiff’s affidavit material and submissions did not always address this category directly, as noted above I accept that it may produce documents that are relevant to the issue of foreseeability. The complicating factor in this application is that the evidence also establishes that the plaintiff has already received complaint files pre-dating 1955 from the defendant in accordance with the compromise of the previous discovery summons.
The plaintiff’s submissions and evidence did not seek to address what this already-discovered material covered or what might be missing from it, such that the present application is necessary. In the absence of any such material, I proceed therefore on the basis that the utility of the documents now being sought would likely be materially reduced compared to the utility of the category sought in the previous application – presumably the pre-1955 complaint files already discovered will enable the plaintiff to make the arguments he wishes to about knowledge or foreseeability, so the further material now sought would be most likely to go to the force or weight of those submissions at best. I accept the submission made by counsel for the defendant that there is nothing identified in the present application to suggest that the broader searches that the plaintiff seeks to have the defendant perform would produce any material with significant probative value beyond the effect of the material that has already been discovered by agreement.
Fourth, the timing of the application and the current state of the proceeding is relevant to bear in mind. The proceeding has been on foot since late 2020. The plaintiff’s previous discovery application, and the defendant’s stay application, were issued in late 2022. The previous discovery application was resolved in January 2023. The present application was not issued until late October 2023. No adequate explanation has been provided as to why categories resolved by agreement in the previous discovery application have been the subject of the present application, nor as to why the present application was commenced so late after the resolution of the previous application and the defendant’s supplementary affidavit of documents in March 2023.
Moreover, the stay application and, should that application not succeed, the trial of this proceeding are expected to be heard in the upcoming months. The defendant’s evidence is that compliance with this category would take a substantial amount of time and resources. Against the background set out above, I think there is cause for real concern that requiring a significant additional discovery exercise to be undertaken at this juncture would introduce considerable further delay and disruption to a proceeding that has already encountered more than its share of delay. I would conclude that a compelling reason is required to do so in these circumstances, and that reason is not present here.
As such, in the circumstances of this application I decline to make an order requiring discovery of the documents covered by the plaintiff’s category A.
E.1.1 National Redress Scheme documents
Although it is not necessary to determine the issue given the conclusion I have reached about this category, as the parties both made submissions about the Court’s power to order production of National Redress Scheme documents, and as this issue will be relevant to subsequent categories, it is appropriate to briefly address this issue.
The defendant says that s 105 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) prevents orders being made in the form the plaintiff proposes, insofar as they seek to compel the discovery of notifications or complaints it received from the National Redress Scheme.
The plaintiff’s position was that National Redress Scheme documents covered by Category A are relevant to the issues in dispute, and that the issue of their use or admissibility at trial is a separate question for the trial judge.
The starting point for consideration of this disagreement is the text of the National Redress Scheme legislation itself.
Section 92 of the Act provides:
92 Protected information
(1) This Division deals with how protected information may be obtained, recorded, disclosed or used under this Act.
(2) Protected information is:
(a) information about a person or an institution that:
(i) was provided to, or obtained by, an officer of the scheme for the purposes of the scheme; and
(ii) is or was held in the records of the Department; or
(aa)information about a person or an institution that:
(i) was provided to, or obtained by, an officer of the scheme for the purposes of the scheme; and
(ii) is or was held in the records of the Human Services Department (within the meaning of this Act as in force at any time); or
(b) information to the effect that there is no information about a person or an institution held in the records of a Department referred to in subparagraph (a)(ii) or (aa)(ii)
Section 105 of that Act addresses the use of certain information arising in connection with the National Redress Scheme in civil proceedings:
105 Disclosures to a court or tribunal
(1)A person must not be required to disclose to a court or tribunal in any civil proceedings:
(a) protected information; or
(b)information that is contained in the assessment framework policy guidelines.
(2)Subsection (1) does not apply if the disclosure of the information is for the purposes of giving effect to this Act.
(3)For the purposes of subsection (2) (and without limiting that subsection), if the disclosure of the information is in civil proceedings for judicial review of a decision made under this Act, then the disclosure is for the purposes of giving effect to this Act.
(4)Subsection (1) does not apply if the disclosure of the information is in civil proceedings under, or arising out of, section 28 (which is about giving false or misleading information, documents or statements to an officer of the scheme).
(5)Subsection (1) does not apply if:
(a)the person did not obtain the information under, for the purposes of, or in connection with, the scheme; or
(b)the person had already obtained the information before the person obtained the information under, for the purposes of, or in connection with, the scheme.
(6)Protected information and information that is contained in the assessment framework policy guidelines are not to be published by any person, court or tribunal.
In connection with subsection (2) of that section, it is relevant to note that the objects of the Act are set out in s 3(1) as follows:
3 Objects of this Act
(1) The main objects of this Act are:
(a) to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and
(b) to provide justice for the survivors of that abuse.
Both parties referred to the decision of Irving AsJ in Jagoe v Trustees of the Marist Brothers (‘Jagoe’).[19] In that case, his Honour was asked to determine a dispute over the ability to disclose allegations of abuse notified to the defendant in that proceeding under the National Redress Scheme. His Honour’s reasons provide the following further relevant explanation of the provisions of the legislation:
19.‘Human Services Department’ is defined in s 6 of the Act to mean Services Australia. The capitalised word ‘Department’ is used at various points in the Act, but does not appear to have been similarly defined.
20.The explanatory memorandum for the Act notes that s 92, ‘sets out the purpose of Division 2 and defines protected information. A large amount of protected information will likely be acquired by the Operator through the operation of the Scheme, and the protection of that information and a person’s right to privacy is considered paramount.’ The explanatory memorandum does not provide guidance about the words, ‘is or was held in the records of the Department’ or ‘Human Services Department’.
21.Section 93 of the Act provides that a person may obtain, make a record of, disclose or use protected information if, inter alia, the obtaining, recording, disclosure or use of the information by the person is done for the purposes of the National Redress Scheme or with the express or implied consent of the person or institution to which the information relates. Under this section, a person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person or institution.
22.Sections 94 to 98 of the Act set out additional circumstances in which the disclosure of protected information is authorised. Sections 99 to 101 of the Act then create offences related to the disclosure and unauthorised use of protected information.
[19][2022] VSC 563 (‘Jagoe’).
The plaintiff placed emphasis on his Honour’s conclusions that questions of admissibility arising from the legislation are generally best left to the trial judge to determine (once it is known for what purpose a document is sought to be used, for instance),[20] and that questions of admissibility are separate from, and not determinative of, questions about discoverability.[21]
[20]Ibid, [16].
[21]Ibid, [17].
In Jagoe, the defendant’s opposition to the discovery sought by the plaintiff failed, as it had not been established that the documents in question were ‘protected information’ within the meaning of the Act. In part, this was because the defendant had not addressed in its submissions how the two limbs within each of ss 92(2)(a) and 92(2)(aa) operated,[22] and in part this was because:
there was simply no evidence before the Court to support the … defendant’s submission that either or both of the Department or the Human Services Department administers or administered the National Redress Scheme, or that the information in the Redress Scheme allegations documents is or was held in the records or one or other of those departments.[23]
[22]Ibid, [24]-[25].
[23]Ibid, [26].
Mr Dale’s 14 December 2023 affidavit exhibits a number of National Redress Scheme documents. That evidence appears to specifically address the gap in the evidence that had been identified in Jagoe, as the Scheme’s privacy notice that is exhibited, for instance, explains directly that:
The Department of Social Services (we, us, our, department) is responsible for administering the National Redress Scheme for Institutional Child Sexual Abuse (National Redress Scheme), on behalf of the Australian Government. In some aspects of the National Redress Scheme, the department is assisted by Services Australia, an executive agency in the Social Services portfolio. [24]
[24]Dale 14 December 2023 affidavit, p 66.
The plaintiff sought to sidestep the operation of s 105 by relying on s 105(2), which provides that the restriction on the disclosure of protected information does not apply “if the disclosure of the information is for the purposes of giving effect to this Act”. In this regard, the plaintiff pointed to s 3(1)(b) of the Act, noting that one of the main objects of the legislation was ‘to provide justice for the survivors of [past institutional child sexual and related] abuse’, and that, I infer, facilitating civil proceedings by those survivors was consistent with that purpose.
In my view, this submission should not be accepted. The exception in s 105(2) of ‘giving effect to this Act’ must be interpreted according to its terms, and should be interpreted as giving effect to the operation of the provisions of the Act itself, not to any broader concept of objectives that are consistent with those outlined in the legislation. To adopt the broader and more uncertain interpretation proposed by the plaintiff would be to render the clear and detailed confidentiality provisions built into the Act largely meaningless.
On the basis of the material filed in this application, I am prepared to accept (and I did not understand this to be seriously disputed by the plaintiff) that at least some of the material sought by the plaintiff (National Redress Scheme disclosures and claims) would be protected information for the purposes of the legislation. Individuals’ applications, and the information provided to institutions to enable them to respond, would appear to satisfy the definitions of either s 92(2)(a) or s 92(2)(aa) of the Act. The surrounding materials identified in the exhibits to Mr Dale’s affidavit, such as the privacy policies provided to applicants and the fact sheet provided to applicants by the Scheme titled ‘Disclosing Protected Information in Civil Legal Proceedings’ reinforce this view, and also suggest that this interpretation is what has been communicated to individuals who are deciding whether to apply to the Scheme.
For completeness, although I note the issue raised by Irving AsJ in paragraph [25] of Jagoe, concerning whether the requirement that the documents have been ‘held in the records of’ the relevant department, for present purposes I consider that the evidence in Mr Dale’s affidavit about the role of the Department of Social Services and Services Australia in administering the Scheme is sufficient to address this requirement.
The plaintiff suggested that if the information is protected, then the names of applicants could be redacted from any documents that the defendant produces from this category. While this might often be an appropriate course in relation to other kinds of documentation, given the specific legislative provisions that apply here I do not think this would be sufficient to enable the documents’ disclosure. ‘Protected information’ is defined quite broadly as ‘information about a person or an institution’ that was provided, obtained or held in connection with the Scheme: it is more than just names, and the removal of a name from a document containing protected information is unlikely to relevantly change its status.
A final issue I raised with the parties is whether a discovery obligation in a civil proceeding amounts to a party being ‘required to disclose to a court or tribunal in any civil proceedings’ information for the purposes of s 105(1) of the Act. Arguably, discovered documents are not disclosed to a court but rather to the other parties to litigation, and disclosure to a court would not occur unless and until a document is exhibited to an affidavit or tendered at trial. The parties did not address this question in detail in their submissions and in the circumstances, and given its potential significance, it is not desirable for me to seek to determine that point when it is not necessary for the purposes of the current application. If it is contentious, then it is a matter that should be addressed at another time, with both parties on notice of the issue and in a position to assist the Court by providing submissions about it.
As such, I do not express a view that the National Redress Scheme documents are unable to be discovered due to s 105(1) of the Act in this case. However, although admissibility will be an issue for trial, I also consider that the provisions of the Act designating protected information as inadmissible are relevant in another way on the present application. This is because, as above, the burden that would be imposed by requiring discovery of the category sought must be considered in light of the likely utility of the material to be produced. Here, that utility is necessarily reduced because of the presumptive inadmissibility of the documents.
Even if the plaintiff’s position was upheld, likely the best that any National Redress Scheme documents might be able to do for the plaintiff would be to commence a course of enquiry that could lead to other admissible evidence. The utility of even that outcome appears to be modest, considering the apparent unlikelihood of information being present only in a National Redress Scheme document and not also being contained in any of the ‘primary source’ documents that have been (or will be) discovered by the defendant, which would not be protected from use or disclosure by s 105(5) of the Act. This reinforces the likelihood that these documents would be peripheral to the real issues in dispute in the proceeding, at this stage.
E.2 Category B
The plaintiff’s second category sought the following:
All complaints received by or brought to the notice of the Christian Brothers, whether the alleged perpetrator is identified or not, including but not limited to current claims, prior claims, litigated civil claims, non-litigated civil claims, Towards Healing disclosures, Towards Healing claims, National Redress Scheme disclosures, National Redress Scheme claims, other church scheme disclosures, other church scheme claims, referrals to the Royal Commission, referrals any state commissions, referrals to CCI, referrals to any other insurer, referrals to police, and any other disclosure whether it amounts to any type of claim or not for:
(i)Alleged child abuse at St Paul’s Technical School in Ballarat Victoria (St Paul’s) that have not previously been discovered.
(ii)Alleged child abuse at St Patrick’s College in Ballart Victoria (St Patrick’s).
(iii)Alleged child abuse at all schools and institutions Brothers Archer (Archer) and North (North) were placed at for the periods they were placed there.
The plaintiff notes the relevance of prior complaints to issues of foreseeability in institutional abuse litigation,[25] and otherwise appears to identify in the affidavit material a concern that the defendant’s searches to date may not have covered all of the possible kinds of claim, complaint or notification that it could have received, nor all of the locations that material could presently reside. The defendant appears to have provided assurances in this regard since the issue was raised, however.
[25]See, e.g., Lenscak v Trustees of the Marist Brothers (No. 2) [2021] VSC 29, [8].
The defendant’s position was that, as above, it has already discovered all complaint files for Victoria up to the end of the pleaded time period in 1955, and that it has discovered all complaint files relating to Archer and North.
In the circumstances, where the defendant says that it has now completed its discovery for sub-part (i), I will make an order providing for the discovery of documents within that part so that any final documents are to be included in the defendant’s forthcoming affidavit of documents, although it appears that such an order would not result in the plaintiff receiving any more documents than he already has.
For sub-parts (ii) and (iii), the defendant says that it has already discovered all complaint files within Victoria prior to 1955, and all complaints that relate to Archer or North, so the only documents that would be caught by these categories will be ones that post-date the alleged abuse that is the subject of the plaintiff’s claim and which concern unrelated perpetrators. The defendant submits that these documents can therefore have no bearing on liability issues in the plaintiff’s claim.
I accept the defendant’s submissions concerning these categories. Prior to 1955, such documents might be relevant to the foreseeability of the risk or the defendant’s knowledge of it, however after the point where the abuse is said to have occurred those documents would not be able to affect the findings that a court might make. Similarly, documents concerning Archer and/or North specifically may also affect findings that a court would make concerning whether the alleged abuse occurred (including in relation to any tendency evidence). Documents about abuse concerning other individuals could not do so.
I am therefore unable to accept that the documents sought by the plaintiff in subparts (ii) and (iii) of this category, to the extent they go beyond the material that has already been discovered by the defendant, will be relevant to the issues in dispute. I therefore decline to make orders concerning those sub-parts.
E.3 Category C
The plaintiff’s third category sought the following:
All visitation reports that have not previously been discovered for the following communities:
(i)Adelaide community (SA) from 1938 to 1940
(ii)Gympie community (Qld) from 1939 to 1944
(iii)Woollahra community (NSW) from 1944 to 1945
(iv)Geelong community (Vic) from 1945 to 1950, 1963 to 1970, and 1976 to 1980
(v)St Kilda community (Vic) from 1940 to 1943 and from 1946 to 1948
(vi)East Melbourne community (Vic) from 1943 to 1946 and from 1957 to 1960
(vii)Moonee Pond community (Vic) from 1948 to 1951
(viii)Ballarat community (Vic) from 1950 to 1961 and from 1972 to 1974
(ix)Perth community (WA) from 1961 to 1963
(x)Abbotsford community (Vic) in 1960, and from 1974 to 1976
(xi)Yarraville community (Vic) from 1970 to 1971
(xii)North Melbourne community from 1971 to 1972, and 1980 to 1983
(xiii)Clifton Hill community from 1983 to 1988
(xiv)Parkville community from 1988 to 1996
(xv)The communities Archer resided at between 1935 and 1939
(xvi)Any other periods and communities where North and Archer resided there that are not listed above.
The plaintiff contends that the documents sought are relevant, given they will contain information about Archer and North and may be relevant to foreseeability and/or whether the alleged abuse occurred. The defendant’s position was that it had discovered all documents that it can under this category, and has nothing else within its possession, custody or power to produce.
Although formally this does not appear to be made out in the evidence presented on this application, on the assumption that the above sub-parts do represent the locations where Archer or North was placed or resided, and the time periods over which that occurred, I accept that documents falling within this category will be relevant. The defendant submits that it has now produced all of the documents it has under this category, and that it is unable to say what has become of any missing documents.
Counsel for the defendant also noted that the defendant has also made enquiries of the Dublin archives about this material, but has nothing further to produce in response to this category. To the extent it remains an issue in relation to this category, I have not been satisfied that documents within the Dublin archives fall within the scope of the defendant’s discovery obligations. There is evidence from the defendant to the effect that those archives are controlled by an unrelated entity,[26] and the defendant’s ability to obtain documents from them goes no further than issuing a request that may or may not be responded to. In response the plaintiff said that it did not accept that this position was correct, however he put on no evidence to establish that the relationship was anything other than as the defendant described it. This is the plaintiff’s application and the onus remains on him to establish what he needs to in order to establish an entitlement to the orders sought. In this regard, absent more, I do not think a submission that the plaintiff does not believe the defendant’s evidence is sufficient to displace the evidence from the defendant that was otherwise not challenged or undermined in any substantive way.
[26]See, e.g., Dale 14 December 2023 affidavit at [60].
I will therefore not include the Dublin archives within the scope of any work required by the orders I make.
As the defendant’s evidence was that there are some visitation reports that have been unable to be located, the plaintiff sought that the defendant be required to address the usual details of what had become of such documents and when they were last in the defendant’s possession in an affidavit. Counsel for the defendant noted that due to the passage of time since the missing documents were generated, there was not information available to answer these questions. While this was not relevantly challenged, nonetheless I accept that the plaintiff is entitled to have this response provided in the form of an affidavit.
On the basis that the category is relevant, I will make an order for its discovery in order that the status of any missing documents will be addressed in the defendant’s affidavit of documents, even if all that can be said is that the defendant does not know. On the basis of the defendant’s evidence I anticipate this category will not result in any further documents being produced to the plaintiff, however if the defendant does subsequently locate any missing relevant visitation reports, then no doubt they will be discovered in accordance with its ongoing obligations.
E.4 Category D
The plaintiff’s fourth category sought the following:
Class lists for all classes taught by North and Archer including within the communities listed at paragraph … (c).
The plaintiff submitted that class lists could be relevant in that he is trying to locate witnesses who can give evidence as to the alleged abuse and the conduct of the teachers, among other things. For the schools other than St Paul’s, the plaintiff submitted that the lists might be relevant to tendency evidence that the plaintiff may call (presumably in relation to proving the alleged abuse, although this submission was not further developed).
The defendant noted that it had discovered four class lists relating to St Paul’s, but objected to this category on the basis that it covers an overly broad period of time (category C covering a range from 1938 to 1998), and that it covers a range of schools unrelated to St Paul’s that have nothing to do with the issues raised in the plaintiff’s claim.
Mr Dale’s 14 December 2023 affidavit identifies that the defendant is not in possession of further class lists, and that it has contacted Damascus College Ltd (which now holds the St Paul’s documents) to enquire about further material, without success. Mr Dale was unable to provide an estimate for the amount of time that would be required to fully investigate this category, but noted that it would involve a search of all of the defendant’s digitised and hard-copy records as well as seeking to request relevant documents of the 14 different schools (or their successor entities) that would be covered by the category.
Counsel for the plaintiff ultimately accepted the position put by counsel for the defendant, that Damascus College Ltd is an unrelated entity to the defendant, and that the defendant has no control over or power to call upon documents held by that entity. In those circumstances, where the defendant submits that it has discovered all of the documents it has concerning St Paul’s, the evidence relied upon by the defendant is sufficient to dispose of this issue.
In relation to class lists from schools other than St Paul’s, on any view these records could not lead to evidence that would assist in directly establishing whether the abuse occurred. The most they might be capable of doing is indirectly assisting the plaintiff in locating evidence relevant to tendency or foreseeability, however even the probability of this occurring appears limited considering the time periods in question (meaning, for example, individuals may have since changed names or locations and be unable to be found, and memories otherwise may have faded).
In circumstances where:
(a)the prospect of any individuals referenced in class lists being able to provide relevant evidence is speculative at best,
(b)there is other evidence that has already been discovered to the plaintiff that is more directly relevant to foreseeability,
(c)responding to the category for schools other than St Paul’s would be burdensome for the defendant and without any guarantee of success, and
(d)the application is made late and there has been no explanation as to why this request was not able to be pursued in the plaintiff’s previous discovery application,
I am not satisfied that making an order for this category is consistent with the overarching purpose of the Civil Procedure Act. It would be costly and likely of quite limited utility, and would not facilitate the efficient and timely resolution of the real issues in this proceeding.
E.5 Category E
The plaintiff’s fifth category sought the following:
List of clergy members and lay persons who resided in the same communities and/or taught alongside North and Archer including those within the communities listed at paragraph … (c).
The plaintiff did not address this category specifically in his submissions, however I infer that it is sought for the same reasons as the previous category. It may assist in the identification of witnesses who could assist the plaintiff in relation to foreseeability/knowledge or tendency evidence.
The defendant says that it has already produced the available visitation reports spanning the careers of North and Archer (which on the evidence available would appear most likely to contain the information the plaintiff seeks, identifying lists of people residing alongside Archer and North at relevant times), and has produced everything it can for St Paul’s. It objects to providing documents beyond this, as it says such materials would be irrelevant and disproportionate to the issues in dispute.
I accept the defendant’s position. Beyond documents that directly relate to St Paul’s and the time-period of the abuse, it is unclear what the purpose of such a broad category would be other than as a means to locate witnesses. That purpose appears to be achieved by reference to the visitation reports already discovered. The plaintiff has not put on any evidence about limitations or gaps in the already-discovered visitation reports that he is seeking to remedy.
Although the parties did not spend much time in their affidavit material or submissions on this category, as a matter of common sense it would also seem that given the kinds of people who would be recorded in the lists that the plaintiff seeks, and the amount of time that has passed, many if not most of the relevant witnesses who might be recorded would either be very elderly or deceased. As such, the utility of this category seems likely to be limited.
Combined with the timing and case-management factors I referred to above in relation to the categories above, I do not consider that the order sought concerning this category should be made.
E.6 Category F
The plaintiff’s sixth category sought the following:
All material relating to North and Archer’s application and entrance into the Christian Brothers, their novitiate, and all professions made, including but not limited any investigations or queries undertaken in assessing their suitability to enter the Christian Brothers and any material obtained such as school records.
I accept that documents within this category are likely to be relevant to the issues in dispute. The defendant’s evidence is that it has produced a further document and has now discovered all documents that it has for this category. The plaintiff has not challenged this position or sought to suggest that there are other documents the defendant has not considered or searched for.
As the defendant has produced further material to the plaintiff, I will make an order in relation to this category so that this further material is included in the defendant’s forthcoming affidavit of documents.
E.7 Category G
The plaintiff’s sixth category sought the following:
All documents relating to any disciplinary or proposed disciplinary action in relation to any abuse alleged to have occurred in the following communities:
(i) Adelaide Community (SA) from 1938 to 1940
(ii) Gympie Community (Qld) from 1939 to 1944
(iii) Woollahra Community (NSW) from 1944 to 1945
(iv) Geelong Community (Vic) from 1945 to 1950
(v) St Kilda Community (Vic) from 1940 to 1943 and from 1946 to 1948
(vi) East Melbourne Community (Vic) from 1943 to 1946
(vii) Moonee Pond Community (Vic) from 1948 to 1951
(viii) Ballarat Community (Vic) from 1950 to 1961.
The plaintiff did not appear to make any specific submissions or rely on any particular evidence in respect of the relevance of this category.
The defendant opposes this category on the grounds of relevance. It says that anything relevant to the plaintiff’s claim would have been included in the pre-1955 complaint files for St Patrick’s Province that have already been discovered, and that anything after this time could not assist in relation to the plaintiff’s liability case and therefore would not be relevant.
In the absence of any more detailed argument from the plaintiff, I prefer the defendant’s position. The material discovered to date would capture responsive records for the St Patrick’s Province prior to 1955, and all records relevant to Archer and North. The further discovery now sought by the plaintiff would therefore produce documents about unrelated individuals and locations, and events that postdate the plaintiff’s alleged abuse. No basis has been articulated by the plaintiff as to how this further material would be relevant to any fact in issue in the proceeding or the stay application.
Accordingly I am not persuaded that an order for this category should be made.
E.8 Category H
The plaintiff’s eight category sought the following:
Material relating to St Paul’s, including but not limited to enrolments in and prior to 1955; class photos in and prior to 1955; staff photos in and prior to 1955; all other photos relating to St Paul’s in or prior to 1955; alumni names and contact details who attended St Paul’s in and prior to 1955; attendees for St Paul’s reunions who attended St Paul’s in and prior to 1955; photographs of North, Archer and the Plaintiff in and prior to 1955; photographs of North and Archer after 1955; school magazines for 1955 and prior; school newsletters for 1955 and prior; and yearbooks for 1955 and prior.
The plaintiff’s position was that school documents such as those covered by this category would ordinarily be retained by the school unless or until they were destroyed. Although there was initially some discussion concerning the question of whether documents now held by Damascus College Ltd (as these documents appear to be) were within the defendant’s control, counsel for the plaintiff subsequently accepted that Damascus College Ltd is a separate and unrelated entity to the defendant.
The defendant says that it has responded to this category for 1950-1955, when the plaintiff, North and Archer were all at St Paul’s. After this time period, the defendant says that such material could not provide any assistance in relation to liability issues in this proceeding. The defendant produced a further photograph of North and Archer annexed to Mr Dale’s 14 December 2023 affidavit, but that it otherwise has no further relevant documents to produce.
In the course of the hearing, the plaintiff amended his position so that only documents after 1935 were being sought (when it is believed Archer commenced with the Christian Brothers).
I am not satisfied that it is appropriate to make an order in the form sought by the plaintiff, for several reasons:
(a)First, the defendant says it has already responded to the category for the critical period of 1950-1955 (noting the additional photograph that was produced in December 2023);
(b)second, the plaintiff appears to have accepted that the documents sought would properly be held by Damascus College and not the defendant (noting that a subpoena had been issued in December 2023 addressed to Damascus College, a different mechanism by which these documents could be obtained);
(c)third, the evidence from Mr Dale’s 14 December 2023 affidavit was that Archer and North commenced teaching at St Paul’s in 1950 and 1951 respectively, so it is unclear what relevant material could be obtained going back to the plaintiff’s revised start date of 1935;
(d)fourth, the plaintiff did not explain how material post-dating the alleged abuse would be relevant to any issues in dispute in the proceeding;
(e)fifth, the plaintiff did not advance any specific evidence or submissions as to the relevance or importance of classes of documents such as class photographs, alumni names and contact details, and reunion attendees;
(f)sixth, although there is no evidence from the defendant about the amount of work likely to be involved in responding to this category, it appears obvious that unless all such records have already been comprehensively indexed already (which appears doubtful given the other evidence on this application), searching for responsive documents is likely to be a manual and time-consuming task (looking to identify photographs of Archer, North and the plaintiff over a protracted period of time, for example); and
(g)finally, there was no evidence from the plaintiff to suggest that this category of material could not have been sought in his original discovery application, and the delay in seeking this material now has not been satisfactorily explained.
I therefore decline to make an order in the form sought in respect of this category. Instead, I will make an order in relation to the image referred to in paragraph 55(b) of Mr Dale’s 14 December 2023 affidavit, so that this is included in the defendant’s forthcoming affidavit of documents.
E.9 Category I
The plaintiff’s ninth category sought the following:
The material listed at paragraph … (h) but for St Patrick’s.
The defendant noted the evidence of Mr Dale in his 14 December 2023 affidavit that neither North nor Archer ever taught at St Patrick’s, and the plaintiff never attended that school. It submitted that documents falling under this category are therefore irrelevant.
In the course of the hearing, the issue was identified by the plaintiff as arising because the plaintiff understood that brothers teaching at St Paul’s in the relevant period resided at St Patrick’s College. The defendant agreed that the brothers, including Archer and North, resided in the St Patrick’s community at the relevant times, but noted that this was different to teaching at St Patrick’s College.
That explanation was not relevantly challenged by the plaintiff, and more significantly, neither was Mr Dale’s evidence about the relevance of St Patrick’s College. The kinds of documents sought by category H are clearly directed to school records, and as such the category is inapt to produce relevant documents in circumstances where none of Archer, North or the plaintiff were ever a part of the St Patrick’s school.
The defendant noted that visitation reports for St Patrick’s had been discovered previously, and that these would be more relevant to Archer and North’s residing at St Patrick’s. In those circumstances, I decline to make the order sought by the plaintiff, however it appears he is likely able to obtain at least some of the material he was looking for from those reports.
E.10 Category J
The plaintiff’s tenth category sought the following:
All relevant records that are required to be discovered, including but not limited to, all relevant visitation reports that are held by the Christian Brothers at the Congregational Archives in Dublin in the Republic of Ireland and any other Christian Brothers archives or depositories.
Setting aside the unusual way in which this category was drafted, tautologically seeking discovery of all documents that are already required to be discovered, the category is directed to documents at the Dublin archives or “other Christian Brothers archives or depositories”. The issue in relation to the Dublin archives has been addressed above. I am not satisfied based on the evidence presented on this application that such documents are within the defendant’s possession, custody or power.
The substantive balance of the category seems really directed to other visitation reports held in locations that are within the defendant’s possession, custody or power. To the extent this category might be confined to locations and time-periods relevant to Archer and North specifically, the defendant’s evidence is that it has discovered all that it can and that it has nothing further to produce. That evidence was not challenged by the plaintiff.
To the extent the category seeks a broader category of visitation reports, no evidence or submissions were relied upon by the plaintiff to establish how such a category is relevant. The relevance of such records is not apparent to me.
Otherwise, insofar as the category seeks documents broader than visitation reports, once the Dublin archives are excluded it really amounts to a request that the defendant discover all relevant records that are within its possession, custody or power. That is probably an uncontroversial proposition, but I do not see how it is necessary to reflect that in an order. It is simply a statement of the defendant’s ongoing discovery obligation.
I therefore decline to make an order in the form sought.
E.11 Category K
The plaintiff’s eleventh category sought the following:
All material by Dr B Coldrey including but not limited to any research, reports, articles, interviews, or any other material produced for and/or in relation to the Christian Brothers.
The only available material explaining what this category refers to appears to be in Ms Di Carluccio’s 20 September 2023 affidavit (the contents of which were quoted again in her 24 October 2023 affidavit), saying relevantly:
(a)in the transcript of the evidence of Dr Coldrey regarding the Betrayal of Trust report, he discusses research and work undertaken on behalf of the Christian Brothers in relation to allegations of abuse by Christian Brothers; and
(b)Brother McDonald in his statement to the Royal Commission refers to a publication by Dr Coldrey titled Reaping the Whirlwind.[27]
[27]At pp 24-5.
The defendant says that there is no evidence to suggest that Dr Coldrey had anything to do with Archer or North, and there is no material from the plaintiff showing how this category will be relevant.
The plaintiff did not make any more detailed submissions, or rely on any more specific evidence, to explain precisely how such documents are relevant to the issues in this case, beyond saying that Dr Coldrey produced a document to the Royal Commission that is relevant to the issue of foreseeability of child abuse within the defendant’s institutions.
Taking the plaintiff’s argument at its highest, it appears that this category could be relevant to issues of foreseeability at a general level – that is, not relating specifically to Archer or North, or to any particular school, community, province or jurisdiction. If this is the case, it has not been explained how this category of documents takes the plaintiff particularly further than the position he would already be in with the pre-1955 complaint files that have been discovered by the defendant.
In circumstances where the application is made late, where there was a previous discovery application in which this issue could have been raised, where the material in support of this category appears to be thin and where the documents sought are likely of limited additional utility to the plaintiff, this category appears most likely to be peripheral to the main disputes in this proceeding. Having regard to the comments made in Volunteer Fire Brigades referred to above and the real need to ensure this case progresses efficiently towards the stay application and (should that application fail) the trial, I do not consider that it is appropriate to make an order requiring discovery of this category of documents in the context of this application.
E.12 Category L
The plaintiff’s twelfth category sought the following:
Material relating to programmes or education provided to the Christian Brothers or any member of the congregation regarding the care of children, teaching children, discipline of children, and human sexuality prior to and during 1955.
The plaintiff does not appear to have addressed this category in any detail in his affidavit material or submissions. On its face, though, I accept that it would likely result in documents that are relevant to the issues pleaded in the statement of claim.
The defendant’s position was that it had located a small number of additional documents responsive to this category, which would be included within its forthcoming affidavit of documents, but that otherwise it had nothing more to discover.
As the relevance of this category was evidently not in dispute, and there are further documents for the defendant to discover in response to it, I will make an order providing for the discovery of such documents.
E.13 Category M
The plaintiff’s thirteenth category sought the following:
Material relating to the members of the Christian Brothers known to have been accused or charged with offences of child abuse.
The plaintiff does not appear to have directed any specific submissions or evidence to this category. I assume it is intended to be directed to evidence that will be relevant to the defendant’s alleged knowledge of abuse prior to the plaintiff’s alleged abuse, or the foreseeability of such abuse occurring.
The defendant submitted that this category was overly broad, exceeded the scope of the pleadings, and responding to it would be task disproportionate to the issues in dispute. The defendant also noted that the category overlapped to some extent with category A, and that it had already discovered all complaint files concerning St Patrick’s Province and all documents concerning Archer and North, and that any remaining post-1955 documents would be irrelevant anyway.
I agree with the defendant’s position that the category should not be allowed. It is very broad and is not confined to any time period or location. It would capture individuals accused or charged concerning conduct that occurred well after the alleged abuse of the plaintiff, the relevance of which to the present proceeding is not apparent. Describing the category as “material relating to” such individuals is also extremely broad and imprecise, and would likely capture a great many documents that simply reference such names without regard to whether those documents are likely to materially advance any party’s case in this litigation. Absent further confinement, responding to this category appears likely to take considerable time and resources.
To the extent the plaintiff seeks evidence to advance his position on his knowledge and foreseeability arguments at trial, the category seems to materially overlap with a number of other categories seeking complaint material. As the defendant has already discovered complaint files prior to 1955, and the personnel files of North and Archer, the additional utility that might be derived from this category is likely quite confined.
Further, as above, the present application is made late and there has been no explanation as to why this category could not have been sought in the plaintiff’s original discovery application. It does not appear to be a category that has been rendered relevant by the existence of the stay application, and has not been described as such by the plaintiff. As such, case-management considerations also speak against this category being allowed.
For those reasons, I decline to make the order sought in respect of this category.
E.14 Category N
The plaintiff’s fourteenth category sought the following:
Material relating to canonical measures, including but not limited to any canonical warnings given to Christian Brothers who admitted or were the subject of complaints of child abuse in the following communities during the following periods:
(i) Adelaide Community (SA) from 1938 to 1940
(ii) Gympie Community (Qld) from 1939 to 1944
(iii) Woollahra Community (NSW) from 1944 to 1945
(iv) Geelong Community (Vic) from 1945 to 1950
(v) St Kilda Community (Vic) from 1940 to 1943 and from 1946 to 1948
(vi) East Melbourne Community (Vic) from 1943 to 1946
(vii) Moonee Pond Community (Vic) from 1948 to 1951
(viii) Ballarat Community (Vic) from 1950 to 1961
The defendant reiterated that it had already discovered the St Patrick’s Province complaint files up to 1955, and all documents relevant to Archer and North (noting that Mr Dale’s evidence in his 14 December 2023 affidavit was that the defendant holds no documents relating to canonical measures for Archer or North, although it had previously discovered some connected documents in relation to North).
Outside of these categories, it says the category is irrelevant and overlaps with category A. The defendant also objects to the category on the basis that it seeks to re-litigate the plaintiff’s previous discovery application, which was resolved by consent in January 2023.
The plaintiff again did not appear to address the relevance or use of this category in any detail in his evidence or submissions.
Mr Dale’s affidavit of 14 December 2023 identifies and annexes nine documents that are said to be relevant to this category by way of further discovery, and says that the defendant otherwise does not have any further relevant materials in its possession, custody or power. In circumstances where that position has not been challenged, I will make an order providing for the discovery of the documents referred to in paragraph [66] of that affidavit. I have not been satisfied that the plaintiff has established an entitlement to the broader form of the order he sought, for the reasons set out above for categories A and M, however in light of the defendant’s evidence that it has no more material to discover in any event, it appears that disallowing this category otherwise would not have any adverse impact on the plaintiff.
E.15 Category O
The plaintiff’s fifteenth category sought the following:
Material relating to supervision arrangements of Christian Brothers and referrals to therapeutic or psychiatric intervention.
The plaintiff did not appear to address this category specifically. I assume it is directed to issues of foreseeability, or potentially the actions or policies of the defendant in responding to the alleged risks identified by the plaintiff in his statement of claim.
The defendant objected to this category on the grounds of relevance, noting that it is not limited by time or subject matter, among other things. Mr Dale’s evidence was that the defendant has no records to discover concerning Archer or North under this category, and that although it was not possible to produce an accurate estimate for how long it would take to respond to the category, it would involve thousands of hours of work.
I agree with the defendant’s position: the category is plainly inappropriate for use. It is not connected in any obvious way to the issues raised on the pleadings in this case, and would be likely to capture broad categories of sensitive material that have no bearing on or relation to the issues in dispute in this case. I do not think this category should have been pursued without being more carefully drafted and without being accompanied with specific evidence and submissions about the likelihood of such material existing, the relevance of those documents to the issues raised on the pleadings, and the utility of those documents to the conduct of the proceeding at this late stage. I decline to make the order sought by the plaintiff concerning this category.
E.16 Category P
The plaintiff’s sixteenth category sought the following:
School reports relating to every institution the alleged perpetrators were placed.
The nature of this category was not well explained in the affidavit material, however in the course of the hearing it was clarified that ‘school reports’ are a particular type of document bearing that title, which in the defendant’s characterisation are largely lists of names and administrative details rather than more substantive content. The plaintiff appeared to suggest that this category may also be of assistance in locating witnesses, which may be relevant to matters at trial concerning that events that occurred at St Paul’s, including by way of any tendency evidence the plaintiff seeks to rely on.
The defendant’s position was that lists of names such as these were not relevant to any pleaded issue in dispute. It has already produced all records concerning St Paul’s for the time the plaintiff was present, as well as the visitation reports for the periods in which Archer or North were present there, but the school reports sought outside this period will not be of assistance.
Having regard to the nature of the documents, it is not appropriate to make an order requiring discovery of this category of documents. The category is not limited by time at all, so it would capture documents well before and after the events that are relevant to the plaintiff’s claim. Moreover, Mr Dale’s evidence was that complying with this category would involve working with 15 different schools or their successor entities. A precise time estimate could not be provided but it is clear that on any view the burden imposed on the defendant by this category would not be trivial.
In circumstances where the documents responsive to this category appear to be of limited utility to the claim (or are peripheral to the real issues in dispute), where the category is not well targeted, where the plaintiff has already received the most relevant records concerning the central issues in the proceeding, where the burden of this category on the defendant is material, and where the application is made late, I am not satisfied that it is appropriate to make the order sought.
E.17 Category Q
The plaintiff’s seventeenth category sought the following:
Provincial Council Minutes, Provincial Council Correspondence from 1935 (Archer applied to join the Congregation) to 1953.
The defendant objected to the category on the basis on relevance, as it goes beyond the scope of the plaintiff’s pleadings, and also on the basis that it is an attempt to relitigate the prior discovery application. Counsel for the defendant also observed that the category seeks documents over an 18-year period without providing any specificity as to what is sought, when the Provincial Council Correspondence in particular covers a wide range of document types (many of which will be irrelevant), and the plaintiff has not identified how any such records could be relevant to the pleadings.
In light of the available evidence, it is useful to approach this category by separating consideration of the Provincial Council Minutes from the Provincial Council Correspondence.
The affidavit material identified that there is a set of Provincial Council Minutes for 1935 to 1952 that has not been inspected to date, which is within the defendant’s control at its Parkville archives. Mr Dale estimates in his 14 December 2023 affidavit that this collection amounts to about 148 pages and, given the nature of the documents, estimates that five to ten minutes per page would be required to review this set, amounting to a total of approximately 12-24 hours’ work. The defendant’s correspondence of 8 March 2023 indicates that the Minutes and the Correspondence may contain records of prior complaints of sexual abuse, so I accept that this set of material is likely to be relevant at least to issues of foreseeability and knowledge, and as its contents appear to be unknown at this stage, it may also have the potential to be of some relevance to the stay application as well.
Although the application is made late and the points made above about the lack of an adequate explanation for this continue to apply, this is a very confined set of material. As the evidence indicates it has already been digitised and is known to cover the specific documents sought for the relevant years, it also appears to lead to a highly targeted search, with less chance than other categories of the defendant needing to spend time considering irrelevant material. In my view, the potential utility of this set of documents outweighs the modest burden of 12-24 hours of review work that the defendant would need to undertake. I will therefore make an order providing for the scope of the defendant’s discovery to include the 148 pages of Provincial Council Minutes for 1935-1952 identified in Mr Dale’s affidavit.
I think the Provincial Council Correspondence falls into a different category, however. Mr Dale’s evidence indicates that there are approximately 3000 pages stored in boxes labelled for years between 1935 and 1953, plus a further nine undated boxes of this size. Assuming an average of five minutes would be needed to review each page, Mr Dale estimates that this would require 1,000 hours of work, or 142 business days. As noted above, the plaintiff did not seek to substantively challenge Mr Dale’s evidence about these estimates, beyond noting that they were not believed.
Even if this category was confined to the three boxes labelled from 1935-1953, this would still amount to approximately 35-36 days of work to review this material. Given the available evidence about the nature of the Correspondence documents, including the fact that they contain a wide range of document types, that all are handwritten, and some are faded or damaged, I am prepared to accept Mr Dale’s estimates of five minutes work per page as a reasonable one.
That being the case, in my view the considerations that warranted the review of the Provincial Council Minutes operate the other way in the case of the Provincial Council Correspondence. The burden on the defendant would be significant when the parties need to be focusing on the stay application and potentially the trial, and the utility of the documents is reduced compared to the Minutes given the Correspondence covers a much wider range of document types. On balance I do not think that the Correspondence has been established to be so critical to the central issues in dispute that an order for its discovery is warranted at this late stage, and in circumstances where there was a previous discovery application brought by the plaintiff in which this material could have been sought.
As such, I will make an order in respect of this category for the defendant to discover relevant documents within the 148 pages of Provincial Council Minutes referred to in Mr Dale’s affidavits.
F Conclusion and costs
For the reasons set out above, I will make orders requiring the defendant to discover documents responding to categories B(i), C, F, H, L, N and Q (confined to the 148 pages of Provincial Council Minutes for 1935-1952 identified in Mr Dale’s affidavit dated 14 December 2023) as sought by the plaintiff.
In relation to the costs of the application, the plaintiff’s position was that the application has resulted in the production of further documents by the defendant and that he has therefore succeeded and should be entitled to his costs.
In response, counsel for the defendant submitted that it may be appropriate to address questions of costs once the outcome of the application is known, but the defendant rejected any suggestion that it had capitulated on the application. Counsel observed that some documents were produced by the defendant before the application had been issued, and that otherwise a large number of the categories sought by the plaintiff were overly broad or otherwise inappropriate. He submitted that it may be appropriate to order that costs be in the proceeding, or otherwise that it could be an appropriate case to apportion the plaintiff’s costs.
As the parties were not in a position to address any submissions about costs to the actual outcome of the application, I will allow a period of seven days for any party to file brief submissions (limited to three pages) on the questions of costs.
To assist in that process, without finally determining the matter, I express a provisional view at this stage that the circumstances of the application warrant the court allowing a portion of the plaintiff’s costs, reflecting the fact that the plaintiff has succeeded on obtaining some further documents, but that the application overall was not optimally conducted and at least a portion of the resources involved in this process appear to have been unnecessary.
Although the plaintiff only succeeded on 7 out of 17 categories, I do not think awarding costs based on that percentage necessarily leads to a fair result, as it would fail to reflect the fact that some categories sought by the plaintiff will have involved more work than others. Moreover, the application has been successful in producing some further material for the plaintiff, and costs would ordinarily follow the event.
Accepting that this is an impressionistic figure, given what has occurred in the course of this application, and taking account of the difficulties posed by issues of timing and the lack of evidence or submissions by the plaintiff on some key points, as a provisional view I consider a fair outcome is that the plaintiff be entitled to 50% of his costs of the application.
The question of costs will be determined on the papers, based on any submissions the parties file on this point within the next seven days. In the event neither party files any submissions by that time, I will make a costs order in the form I have indicated at that time.
SCHEDULE OF PARTIES
| S ECI 2020 03448 | |
| BETWEEN: | |
| DOMENIC COLBERT (A PSEUDONYM) | Plaintiff |
| - v - | |
| TRUSTEES OF THE CHRISTIAN BROTHERS | Defendant |
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