Di Cesare v Bird & Anor
[2021] VSC 25
•2 February 2021
| 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 charges involving sexual abuse of 12 children between 1969 and 1992. The plaintiff was one of those children. Claffey was sentenced on those charges by Judge Hampel in the County Court on 4 October 2016.[1]
[1]DPP v Claffey [2016] VCC 1438.
The pleaded case and the defence
The plaintiff alleges that in November 1984, when he was almost 13 years of age, Claffey attended his family home ostensibly to offer pastoral care, and indecently assaulted him (‘the abuse’). The plaintiff pleads that Claffey’s actions were voluntary, positive and intentional. In response the first defendant pleads:
As to paragraph 23, he says:
(a)on or about 4 October 2016, Claffey pleaded guilty to a number of offences, including one count of indecent assault against the Plaintiff (Proven Abuse).
Particulars
The charges, including that concerning the Plaintiff, are more fully described in the Reasons for Sentence in DPP v Claffey [2016] VCC 1438.
(b) he otherwise does not know and therefore can neither admit nor deny the allegations in paragraph 23.
The circumstances of the abuse of the plaintiff by Claffey recorded in the sentencing reasons are consistent with those pleaded by the plaintiff. The first defendant does not admit that Claffey’s actions in perpetrating the abuse were voluntary, positive and intentional.
The plaintiff has pleaded claims against the diocese in vicarious liability and negligence.
The first defendant has admitted that Claffey was a priest of the diocese between 1969 and 1989, and engaged in duties and had responsibilities as a priest at various parishes within the diocese, but does not admit that Bishop Mulkearns, as a servant and agent of the diocese, placed Claffey in positions of authority, power, care, intimacy and supervision over Roman Catholic children in the diocese. The first defendant denies that the diocese is vicariously liable for the abuse.
The plaintiff has pleaded that the diocese owed him a duty to exercise reasonable care for his welfare and safety, and that a breach of that duty was a cause of the abuse. The plaintiff pleads that the duty included:
a.to protect the Plaintiff from sexual abuse by those who were engaged as priests by the Diocese;
b.to act on the knowledge that Claffey had sexually abused children whilst a priest, including in the Diocese;
c.to remove Claffey from the priesthood, and/or remove him from any position in which he could sexually abuse children, before 1984;
…
In response, the first defendant has pleaded:
(a)he admits that at relevant times the Bishop of the Diocese when performing his functions and duties as Bishop of the Diocese owed a duty to persons in a position similar to that of the Plaintiff to take reasonable care to avoid foreseeable risk of injury of which the Bishop knew or ought to have been aware; and
(b) otherwise does not admit paragraph 36.
In relation to knowledge and foreseeability, the plaintiff pleads:
37At all relevant times, the Diocese and/or its servants and agents knew or ought to have known that Claffey;
a. was a paedophile;
b.had been sexually abusing Roman Catholic children in the Diocese since 1970;
c. indecently assaulted the Plaintiff on or about 5 November 1984.
38The risk of injury and harm to the Plaintiff from sexual abuse by Claffey was, or ought to have been, foreseeable by the Diocese.
39 A reasonable person in the position of the Diocese would have:
a.protected the Plaintiff from sexual abuse by those who were engaged as priests by the Diocese;
b.acted on the knowledge that Claffey had sexually abused children whilst a priest, including in the Diocese;
c.removed Claffey from the priesthood, and/or removed him from any position in which he could sexually abuse children, before 1984;
…
In response the first defendant pleads:
37 He does not admit paragraph 37.
38 He does not admit paragraph 38.
39 He objects to paragraph 39 as it pleads a conclusion of law. Under cover of that objection he:
(a)admits that a reasonable person in the position of the Diocese with knowledge of Claffey’s abuse of children would have taken the steps outlined in subparagraphs 39(a)-(e);
(b)denies the Diocese held knowledge of Claffey’s abuse of children prior to the alleged Indecent Assault; and
(c)otherwise does not admit paragraph 39.
At the request of the first defendant, the plaintiff provided further particulars alleging that the diocese, in particular Bishop Mulkearns, knew or ought to have known the matters set out in paragraph 37 because of the extensive abuse perpetrated by Claffey while he was a priest of the diocese commencing in 1970.
Particulars of the alleged breach of duty by the diocese, which are expressly denied by the first defendant, include:
a.The Diocese failed to adequately supervise, or ensure adequate supervision of, Claffey;
b. It allowed Claffey to have unsupervised contact with the Plaintiff;
c. It failed to protect the Plaintiff from being sexually abused by Claffey;
d. It failed to supervise or adequately supervise Mulkearns;
e.It failed to train or adequately train Mulkearns with respect to protecting children from sexual abuse by priests employed/engaged by the Diocese;
f.It failed to instruct Claffey not to sexually abuse the Plaintiff or other children, in the Diocese;
g.It failed to institute and maintain a system of mandatory reporting or any system of reporting of child abuse;
h.It failed to institute and maintain a program to educate children of the Diocese about their right to be free from sexual abuse and to report any sexual abuse to an appropriately designated person, parents or Police;
i.In continuing to permit Claffey to have regular unsupervised access to children, including the Plaintiff, it represented to the Plaintiff, through his parents, that Claffey was a person who could be trusted to provide pastoral care to the Plaintiff and followers of the Catholic religion, and it thereby increased the risk that Claffey would sexually abuse the Plaintiff;
j.It failed to take any, or any effective, steps to prevent child sexual abuse within the Diocese;
…
The plaintiff claims aggravated and exemplary damages.
The subpoena
In his written outline of submissions the plaintiff revised the schedule of documents required to be produced in response to the subpoena to the following:
1.Documents that contain complaints, allegations, warnings, concerns or investigations, including internal investigations, of sexual abuse committed or alleged to be committed by Robert Patrick Claffey (d.o.b. 18 February 1943) (Claffey) up to and including 5 November 1984;
2.File notes, letters, memoranda, reports, minutes or like documents relating to or recording disciplinary or proposed disciplinary action or internal considerations against Claffey for sexual abuse or alleged sexual abuse committed or alleged to be committed by him up to and including 5 November 1984;
3.Documents relating to compensation, damages or costs paid (but not the quantum) in respect of any other victims of alleged sexual abuse by Claffey committed or alleged to be committed up to and including 5 November 1984;
4.Documents that contain complaints, allegations, warnings, concerns or investigations, including internal investigations, of sexual abuse committed or alleged to be committed by Claffey from 6 November 1984 to the present;
5.File notes, letters, memoranda, reports, minutes or like documents relating to or recording disciplinary or proposed disciplinary action or internal considerations against Claffey for sexual abuse or alleged sexual abuse committed or alleged to be committed by him from 6 November 1984 to the present; and
6.Documents relating to compensation, damages or costs paid (but not the quantum) in respect of any other victims of alleged sexual abuse by Claffey committed or alleged to be committed from 6 November 1984 to the present.
This revision does not alter the subject matter of each category, but tightens the category descriptions. For example, when the subpoena was issued, category 1 commenced ‘Every document relating to a complaint …’.
During the hearing before me the plaintiff conceded that, to the extent they were relevant, documents in categories 3 and 6 would be caught by the remaining categories. On that basis the plaintiff withdrew reliance on those two categories.
Documents held by CCI
The solicitor for CCI, Jackson Pannam, affirmed an affidavit filed on the subpoena objection. I will briefly summarise the evidence given by Mr Pannam.
CCI first issued public liability insurance in around 1969, and in the 1990s issued specific ‘Special Issues’ policies dealing with the risk of church bodies facing claims arising from sexual abuse.
Typically CCI will open a file in relation to a claim when it receives notification from one of its insured clients of an actual claim against that client by a third party. Once CCI determines that insurance coverage is available it appoints lawyers to act on behalf of the insured client. Further correspondence and communications between CCI and the client regarding the claim are then typically via the lawyers appointed.
CCI requires the insured client to provide any relevant records relating to the claim, the claimant or the alleged offender for the purpose of investigating and defending the claim.
Claffey is an infamous offender who sexually abused a significant number of children whilst a Catholic priest in various parishes within the diocese.
CCI has identified all of its claim files that contain documents that are potentially responsive to the plaintiff’s subpoena. To the best of Mr Pannam’s knowledge, it appears CCI has 23 separate claim files and a further bundle of seven incidental documents. This results in a total of 1859 documents comprising 3751 pages. Mr Pannam states that based on his review many of the documents on each claim file are inconsequential and bear no relevance to the issues in dispute in the proceeding, but most, if not all, fall within the broad subpoena categories. I note this evidence responds to the subpoena categories as originally drafted, and does not take account of the revision to tighten categories 1, 2, 4 and 5 or that the plaintiff no longer presses categories 3 and 6. Mr Pannam states that CCI is likely to claim privilege in respect of many documents it may be required to produce in response to the subpoena.
Mr Pannam has estimated CCI’s costs of responding to the subpoena at between $30,000 and $35,000, together with counsel’s fees for advice, the objection hearing and likely privilege claim disputes of up to $36,000.
Relevant principles
Where objection is taken, it is necessary that the party which applied for the subpoena to be issued identify expressly and precisely the legitimate forensic purpose for which access to the subpoenaed documents is sought.[2] A ‘fishing expedition’ is not a legitimate forensic purpose.[3]
[2]Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573 [55] (J Forrest J), citing Messade v Baires Contracting Pty Ltd [2011] VSC 56, [6] (J Forrest J) and Woolworths Ltd v Svajcer [2013] VSCA 270, [16] (Nettle, Ashley and Neave JJA).
[3]Ibid.
The applicant party must also satisfy the Court that it is ‘on the cards’, or that there is a ‘reasonable possibility’ that the documents sought will materially assist their case.[4]
[4]Ibid.
The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the applicant party is seeking to obtain documents to see whether they may be of relevance or of assistance to their case.[5]
[5]Ibid.
Where a subpoena has been issued under r 42A, the Court must be satisfied that the documents sought to be produced are potentially relevant to an issue in dispute in accordance with s 55 of the Evidence Act 2008 (Vic).[6] The issues in dispute are defined by reference to the pleadings.[7]
[6]Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) (n 2) [61] (J Forrest J).
[7]Newnham v Davies [2010] VSC 13, [5] (Kaye J).
A subpoena will be oppressive if the production of the documents which it describes is excessively burdensome and the documents sought to be produced appear not to be sufficiently relevant to the proceedings.[8]
[8]Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, 926 (Waddell J).
Submissions
CCI
The core of the plaintiff’s case is what happened in November 1984, and the knowledge the diocese had or should have had about Claffey before that date. While the plaintiff has pleaded that the diocese knew or ought to have known that Claffey was a paedophile and had been sexually abusing children in the diocese since 1970, the pleadings do not illuminate how the diocese knew the matters alleged. Because the plaintiff has not properly articulated a case with respect to the knowledge of the diocese, the documents sought by the subpoena are not adequately pertinent to any real issue in dispute on the pleadings. In relation to the issue of knowledge, the subpoena process is being used to see whether the plaintiff has a case at all, rather than to obtain evidence to support his case, and therefore amounts to fishing, and should not be permitted.
Documents which fall within subpoena categories 4 and 5, relating to things which have occurred after the abuse, do not bear on, and are not relevant to, any issue in dispute.
The first defendant has, in substance, admitted the abuse. In the circumstances it cannot seriously be suggested that the abuse is going to be a live issue at trial. Accordingly, a forensic purpose of obtaining potential tendency and/or coincidence evidence is not legitimate and does not substantiate the subpoena.
To the extent he relies on the forensic purpose being to obtain evidence as to the tendency of the diocese to act or fail to act in a manner relevant to establishing an aspect of his case such as breach, the plaintiff has failed to expressly and precisely identify the forensic purpose. The plaintiff has failed to say in what precise manner the diocese was prone to act or failed to act, by whom the diocese was constituted in so acting, and over what period of time that tendency extended. Assuming these questions can be answered, they are not reflected in the terms of the subpoena.
The volume of documents which would be responsive to this subpoena arises at least in part from the entirely unconstrained period of time to which it relates. To comply with the subpoena it will be necessary to review each document to ascertain whether it ‘relates to’ the subject matter stipulated in the subpoena, to ascertain whether privilege inheres, and to protect the privacy of other complainants. The cost of doing so is estimated at over $30,000, together with an additional $17,000 to $36,000 for counsel’s fees and other professional charges relating to claims of privilege or other objections to inspection. The burden on CCI of responding to the subpoena, measured against the limited degree of relevance of documents which may be produced to any fact in issue in the proceeding, is such that the subpoena is oppressive and should be set aside.
Plaintiff
CCI is a non-party recipient of a subpoena, and has no standing to complain about the adequacy and particularity of the plaintiff’s pleaded case as to knowledge.
To succeed on his case in negligence the plaintiff must prove that the diocese knew or ought to have known of certain matters that enabled Claffey to sexually abuse the plaintiff in breach of its duty of care to him, and that the risk of injury and harm to the plaintiff from sexual abuse by Claffey was, or ought to have been, foreseeable by the defendant. There can be little doubt that there is a ‘reasonable possibility’ the categories of documents sought under the subpoena will assist the plaintiff by providing direct or inferential evidence of knowledge. Even information post-dating the abuse may illuminate what the diocese knew and when, such that it may be safely inferred that it knew or ought to have known about Claffey in the relevant sense. Evidence that pre-dates the abuse and evidence that post-dates the abuse may show a course of conduct which the diocese has encouraged or allowed to occur, or may support an inference to that effect. A response to offending post-dating the abuse may be relevant to the way in which the diocese dealt with complaints of this nature, or may demonstrate a failure by the diocese to have a proper system in place. Documents which post-date the abuse may contribute to an evidential mosaic which enables the plaintiff to establish his cause of action in negligence. Further, any information about knowledge post-dating the abuse goes directly to the case on aggravated and exemplary damages. The plaintiff’s knowledge that Claffey was able to continue to abuse others may be relevant to aggravated damages, and is clearly relevant to exemplary damages.
The defendant has not admitted the abuse, or that Claffey’s actions in perpetrating the abuse were voluntary, positive and intentional. On the current pleadings it is the plaintiff’s obligation to prove those matters. Further, documents responding to the subpoena may be relevant to revealing a tendency on the part of the diocese to fail to act or to conceal knowledge in a way which was causative of the abuse. The ‘precise manner’, whom and when, are inevitably broadly put because that is information the plaintiff does not yet have.
For a subpoena to be found to be oppressive it must not only be excessively burdensome but also insufficiently relevant. The volume of documents responding to the subpoena is not excessive. Further, the relevance of the documents is clearly established. The subpoena should not be set aside as being oppressive.
Analysis
For the following reasons I conclude that, subject to a possible revision of the wording of categories 2 and 5, the subpoena should stand and CCI should produce documents to the court responding to categories 1, 2, 4 and 5.
CCI’s submissions focused on the issue of whether the diocese knew or ought to have known that Claffey was a paedophile before the abuse occurred. The plaintiff alleges the diocese, in particular Bishop Mulkearns, should have known Claffey was sexually abusing children in part by reason of the extensive abuse perpetrated by him since 1970. There is no doubt that Claffey abused a number of children in the diocese before November 1984 and that CCI holds claim files which include records relating to claims of abuse, the claimants and Claffey. There will be documents recording the circumstances in which the abuse occurred. Of course it is possible that Bishop Mulkearns and other priests of the diocese did not know of Claffey’s offending. However there is a reasonable possibility that knowledge of surrounding circumstances which falls short of showing that the diocese knew Claffey was abusing children and was a paedophile may, when all the evidence is considered, assist the plaintiff to establish that, with reasonable supervision and enquiry, Bishop Mulkearns or others in the diocese should have known this was occurring. On this basis category 1, and probably category 2, are unobjectionable.
The plaintiff’s negligence case is not so narrow as CCI’s submissions suggest and is not based solely on proof that the diocese knew or ought to have known that Claffey was a paedophile. The pleadings raise more generally the alleged duty to protect the plaintiff from sexual abuse by diocesan priests, the foreseeability of the risk of harm to the plaintiff from sexual abuse by Claffey and, in relation to breach, issues of training, supervision, instruction, reporting, education and the systems which allowed Claffey to regularly have unsupervised access to children. Documents within category 1, and probably category 2, may assist in showing that Claffey had a history of isolating children in his care, and how children responded to that experience. The circumstances in which other children were abused by Claffey before November 1984 may show how it was he was able to gain access to and isolate children and whether there were diocesan procedures and systems which authorised or allowed this to occur, or that Claffey did so pursuant to his authority and power as a priest in the diocese. Those documents may be relevant to foreseeability of risk and the content of the duty owed to the plaintiff by the diocese.
Documents in all categories may be relevant to the systems, procedures and laws which governed the operation of the diocese and regulated the activities of priests and their interaction with children. The plaintiff may be able to use documents in all categories to assist to prove breach by establishing that there were systemic deficiencies by the diocese in supervision, instruction, training, reporting, education or access by Claffey to children, which were a cause of the abuse.
Documents in categories 2 and 5 may assist in showing what precautions were available to the diocese to guard against the risk of priests sexually abusing and injuring children, and the likelihood that taking those steps would prevent abuse occurring. The number of incidents of abuse by Claffey before November 1984, and the harm suffered by victims, may be relevant to the seriousness of the risk of harm to children from him, and the probability of the risk eventuating.
Debate in the subpoena objection focused on the negligence case. However, there will be documents in each category relevant to vicarious liability, in particular whether the apparent performance of his role as priest provided the occasion for Claffey to abuse children, and the authority, power, trust, control and ability to gain intimacy with the plaintiff that was assigned to Claffey as a diocesan priest.
The first defendant has not formally admitted that the plaintiff was abused as he alleges. While it may seem unlikely, given the admissions which have been made, that there will be significant dispute about whether the abuse occurred, it is unclear what position the first defendant will adopt at trial. It is possible the first defendant will leave the issue of abuse to be proved by the plaintiff even if he does run hard on the issue. Until the abuse is conceded the plaintiff is entitled to prepare his case to prove it. Documents in each category may allow the plaintiff to lead tendency evidence, and thereby assist in proving the abuse.
The plaintiff’s claims for aggravated and exemplary damages are in issue. If he can establish that the diocese knew of Claffey’s history of offending before November 1984, turned a blind eye to facts and circumstances which would have led to such knowledge, or acted in reckless disregard of the plaintiff’s welfare by allowing Claffey to have isolated access to him, the plaintiff may be entitled to an award of exemplary damages and, if he can show that the conduct of the diocese increased his suffering, aggravated damages. There is a reasonable possibility documents responding to category 1, and possibly category 2, will materially assist the plaintiff to prove his damages claim. It is less clear that documents in categories 4 and 5, which relate to abuse of other children after the plaintiff was abused, are relevant and would be of material assistance.
I conclude that there is a legitimate forensic purpose for the four subpoena categories. There is a reasonable possibility that the documents sought will materially assist the plaintiff’s case, and will be relevant to the issues in dispute.
The parties agreed that CCI should provide two claim files to be reviewed by me. I accept the two files are not necessarily representative of all the claim files. CCI has not made any concession in relation to privilege by providing the files.
It was apparent on review of the files that Mr Pannam was correct in saying that the original draft of the subpoena categories was so broad that it resulted in most if not all documents being caught. However it was also obvious that the effect of refining and reducing the categories is to greatly reduce the number of irrelevant documents which CCI would otherwise have been required to produce. As a result, the burden of responding to the subpoena will be significantly reduced because most documents can immediately be put aside as not responding to a subpoena category, and will not require further review to consider whether privilege issues arise.
Drafting a subpoena category to require production of documents ‘relating to’ a particular subject matter increases the burden on a subpoenaed party by increasing the number of documents caught, and by requiring the file reviewer to make a judgment about the relatedness of the document. That phrase was removed when the plaintiff reformulated categories 1 and 4, but remains in categories 2 and 5. I will hear submissions from the parties about whether categories 2 and 5 can be further refined to reduce the possibility of inconsequential and irrelevant documents being caught.
Subject to further revisions of categories 2 and 5, I conclude having regard to the relevance of documents to the proceeding and the burden on CCI of responding to the revised categories, that the subpoena should not be set aside as oppressive.
I will hear from the parties as to the form of subpoena categories 2 and 5, the redaction of responsive documents which would otherwise reveal the identity of other victims of Claffey, how claims might be dealt with efficiently, and as to the orders which should now be made.
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