Di Cesare v Bird & Anor - [2021] VSC 25

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2019 01839

MARK DOMINIC DI CESARE	Plaintiff
v
BISHOP PAUL BIRD	First Defendant
and
CONGREGATION OF THE CHRISTIAN BROTHERS	Second Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2020
DATE OF RULING:	2 February 2021
CASE MAY BE CITED AS:	Di Cesare v Bird & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 25

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PRACTICE AND PROCEDURE – Subpoena objection – Whether subpoena served a ‘legitimate forensic purpose’ – Matters in issue on the pleadings – Whether impermissible attempt at ‘fishing’ – Reasonable possibility documents sought will assist the plaintiff’s case – Subpoena under r 42A Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Potential relevance of documents - Whether subpoena was too wide and oppressive – Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573 – Messade v Baires Contracting Pty Ltd [2011] VSC 56 – Woolworths Ltd v Svajcer [2013] VSCA 270 – Newnham v Davies [2010] VSC 13 – Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	G Boas	Porters Lawyers
For the First Defendant	No appearance
For the Second Defendant	No appearance
For the Subpoena Objector Catholic Church Insurance Limited	S Hay SC with D Bongiorno	Wotton + Kearney

HIS HONOUR:

The plaintiff alleges that when he was a child he was sexually abused by Robert Claffey (‘Claffey’), who was at the time a Catholic priest in the diocese at Ballarat (‘the diocese’). He brings this proceeding claiming there was negligence by the diocese which was a cause of the abuse and his injuries, and that the diocese is vicariously liable for the acts of Claffey. The first defendant is named as the proper defendant in accordance with the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).

Catholic Church Insurance Limited (‘CCI’) is an insurer of the diocese. The plaintiff subpoenaed CCI to produce six categories of documents it holds relating to sexual abuse committed or allegedly committed by Claffey. CCI has objected to the subpoena on the following grounds:

(a) either the subpoena does not go to any properly articulated pleaded allegation or alternatively is an impermissible attempt at ‘fishing’;

(b) the alleged abuse is not a real issue in dispute in the proceeding, and proof of the abuse is therefore not a legitimate forensic purpose supporting the subpoena; and

(c) the subpoena is too wide and oppressive.

On 29 September 2020 Clayton JR ruled against CCI in relation to its objection to the subpoena. CCI has appealed that ruling in accordance with r 84.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The appeal is by way of hearing de novo.

Background and criminal proceedings

Claffey was a priest of the diocese between 1969 and 1989. For most of that period Ronald Mulkearns was diocesan bishop.

In 2016 Claffey pleaded guilty to 19…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 25
Decision Date: 2 February 2021

CaseChat Overview and Summary

Di Cesare, the plaintiff, initiated proceedings against Bird and another defendant, who are the respondents, in the Supreme Court of Victoria. The dispute revolves around a subpoena issued by the plaintiff seeking specific documents from the respondents. The primary legal issue before the court was whether the subpoena served a legitimate forensic purpose and whether it was an impermissible attempt at 'fishing'. Additionally, the court considered whether there was a reasonable possibility that the documents sought would assist the plaintiff’s case. The subpoena was issued under rule 42A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

The court examined the nature and scope of the subpoena and whether it was too wide and oppressive. It referenced several precedents, including Volunteer Fire Brigades Victoria v CFA, Messade v Baires Contracting Pty Ltd, Woolworths Ltd v Svajcer, Newnham v Davies, and Spencer Motors Pty Ltd v LNC Industries Ltd. The court determined that the subpoena must be scrutinized to ensure it is not being used as a means to uncover irrelevant information. The plaintiff had to demonstrate that the documents were potentially relevant and necessary for the case, and the subpoena was not an overreaching attempt to obtain information that was not pertinent to the matters in issue. The court found that the subpoena served a legitimate forensic purpose, and the documents sought had a reasonable possibility of assisting the plaintiff’s case.

Ultimately, the court ruled in favor of the plaintiff, upholding the subpoena. The reasoning was based on the potential relevance of the documents and the absence of any evidence suggesting the subpoena was an oppressive or fishing expedition. The court emphasized the need for a balance between the right to obtain necessary information and the duty to prevent unnecessary burden and expense on parties. The final order allowed the subpoena to proceed, ensuring that the plaintiff could access the required documents for the proceedings.

Orders