Di Cesare v Bishop Paul Bird
[2020] VSC 673
•29 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2019 01839
| MARK DOMENIC DI CESARE | Plaintiff |
| v | |
| BISHOP PAUL BIRD | First Defendant |
| CONGREGATION OF THE CHRISTIAN BROTHERS | Second Defendant |
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JUDICIAL REGISTRAR: | Judicial Registrar Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 September 2020 |
DATE OF RULING: | 29 September 2020 |
CASE MAY BE CITED AS: | Di Cesare v Bishop Paul Bird |
MEDIUM NEUTRAL CITATION: | [2020] VSC 673 |
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PRACTICE AND PROCEDURE – Subpoena objection – Legitimate forensic purpose – Woolworths Ltd v Svajcer [2013] VSCA 270 cited, whether subpoena a fishing expedition – Whether subpoena too wide and oppressive and cost of compliance disproportionate to forensic purpose - Spencer Motors Pty Ltd v LNC Industries Ltd [1982] - Privacy of sexual abuse victims and complainants.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr G Boas | Wood Fussell, town agent for Porters Lawyers |
| For Catholic Church Insurance Limited | Mr D Bongiorno | Wotton + Kearney Lawyers |
| For the First Defendant | No appearance | Wotton + Kearney Lawyers |
| For the Second Defendant | No appearance |
JUDICIAL REGISTRAR:
At the conclusion of the hearing of the subpoena objection I handed down a ruling ex tempore. Given that there are numerous subpoena objections pending in the Institutional Liability List in this Court that involve this objector, I have converted my ex tempore reasons into this brief written ruling.
Catholic Church Insurance Limited (‘CCI’), objects to a subpoena issued by the plaintiff in this proceeding. The plaintiff alleges abuse in 1984 by Father Robert Patrick Claffey, a priest in the Ballarat Diocese. Claffey was subsequently convicted of criminal offences against the plaintiff and other children.
Save that the first defendant admits that Claffey pleaded guilty to a number of charges, including an offence against the plaintiff, and refers to the sentencing remarks made by Judge Hampel, the first defendant says that it does not know and therefore cannot admit the abuse.
The first defendant does not admit that it breached its duty of care, or was negligent, and does not admit that it was vicariously liable for the acts of Claffey.
The first defendant admits to knowledge of one complaint against Claffey in 1989 but does not admit to any other knowledge and says that there is no record of a complaint the plaintiff alleges that he made to Ronald Austin Mulkearns shortly after the assault by Claffey.
At issue in this proceeding is, amongst other matters:
(a) whether, and, if so, when, the first defendant had knowledge of Claffey’s abuse of children including the plaintiff;
(b) whether Claffey abused the plaintiff in the manner alleged; and
(c) whether the plaintiff complained of the abuse to Mulkearns.
The answers to these questions will, in part, inform the answer to the question of whether the first defendant breached its duty of care to the plaintiff, whether it was vicariously liable for the conduct of Claffey, and what damages, if any, the plaintiff is entitled to, including whether the plaintiff is entitled to aggravated or exemplary damages.
In preparation for trial, the plaintiff has subpoenaed documents from CCI that fall into three categories, over two time periods:
The documents sought are:
(a) complaints made against Claffey prior to 1984 and after 1984;
(b) documents that record disciplinary measures taken against Claffey prior to 1984 and after 1984; and
(c) documents relating to compensation paid to victims of Claffey prior to 1984 and after 1984.
The plaintiff seeks to amend the schedule of documents sought in the subpoena as outlined in exhibit TWP-E exhibited to the affidavit of Thomas Wallace-Pannell affirmed on 28 September 2020.
CCI objects to the subpoena on the following grounds:
(a) that the subpoena is a fishing expedition – the plaintiff seeks to backfill deficiencies in his claim against the first defendant, hoping that relevant documents will be produced;
(b) that there is no legitimate forensic purpose – specifically that the pleadings in relation to the first defendant’s alleged knowledge are insufficiently particularised and that a defective pleading cannot be the foundation for a legitimate forensic purposes; and
(c) that the subpoena is too wide and oppressive and that responding to it would be disproportionate to any possible value that could be obtained from production of the documents – in particular CCI points to the costs involved in reviewing and assessing documents, determining whether a claim of privilege can be maintained and redacting identifying details.
The plaintiff says that there is a legitimate forensic purpose, which is to establish his claims that:
(a) Claffey had a tendency to abuse children;
(b) the first defendant knew or should have known that Claffey had a tendency to abuse children from about 1970;
(c) the first defendant failed in its duty to the plaintiff, which duty included a duty to remove Claffey from the priesthood, to take action in response to allegations of abuse and to provide the plaintiff with counselling and services after he made a complaint to Mulkearns; and
(d) the first defendant has a tendency to act in response to allegations against Claffey in a way that would expose other children, including the plaintiff, to a risk of harm.
The plaintiff says that the documents sought by the subpoena are clearly relevant to the legitimate forensic purpose, in that they are documents about complaints of abuse made by other victims of Claffey, documents going to the knowledge of the Diocese demonstrated by any disciplinary proceedings and documents showing settlement of claims made by CCI to victims of Claffey. The plaintiff says that it is ‘on the cards’, and there is a ‘reasonable possibility’ that the documents sought will materially assist the plaintiff in his claim.[1]
[1]Woolworths Ltd v Svajcer [2013] VSCA 270, [16] (Nettle, Ashley and Neave JA).
Finally, the plaintiff says that the number of documents identified by CCI as potentially responding to the subpoena is not onerous and that, absent a finding that the subpoena is both excessively burdensome and insufficiently relevant, the subpoena ought not be set aside.[2]
[2]Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, 926 (Waddell J).
Having read the affidavit material, and read and listened to the helpful submissions, I am satisfied that:
(a) the plaintiff has established a legitimate forensic purpose for the subpoena in the amended terms sought;
(b) the subpoena is not a fishing expedition; and
(c) it is not excessively wide or onerous.
It appears from the affidavit of Jackson Pannam affirmed on 4 September 2020, deposed in support of CCI’s objections, that the relevant documents have already been located and a preliminary review has been undertaken. I am satisfied that the scope of the subpoena is not unduly wide and the alterations proposed clarify the documents sought. I do not think it is clear that any documents returned will be of such marginal benefit to the litigation that I can be satisfied that it would be disproportionate to require CCI to respond, and that a proportionality argument in these circumstances would be sufficient to set the subpoena aside
I note that CCI seeks, in the absence of the subpoena being set aside, orders for a regime to facilitate any objection to inspection, and its costs of complying with the subpoena.
CCI is entitled to its reasonable costs of complying with the subpoena. Those costs do not include the costs of this objections hearing, given that I have not upheld any of the objections. It is appropriate that the plaintiff get his costs for this objection hearing.
I do not propose to fix the amount of CCI’s costs of complying with the subpoenas given that it has indicated that it is likely to claim legal advice or litigation privilege in respect of a number of those documents and may take other objections in relation to inspection as well.
There is no such claim of privilege before me yet. However, I do note the following for the assistance of the parties in relation to both making and opposing any privilege claim:
(a) It is not enough that a document or communication was produced or made in relation to legal advice or litigation. The document or communication must be confidential – that is, the person who made it or to whom it was made must be under an express or implied obligation not to disclose it, and the document or communication must have been produced or made for the dominant purpose of providing legal advice or providing legal services in relation to a proceeding or an anticipated proceeding.
(b) It is not uncommon in this court to see claims of privilege that clearly cannot be maintained, including, for example, claims of privilege over documents that record purely administrative matters which could not have been produced in circumstances where anyone could have had an express or implied obligation of confidentiality.
(c) I also reiterate my comments in Levey v Bishop Paul Bernard Bird[3] in which I sought to clarify the Court’s approach to redaction of documents to remove identifying details. I do not consider that my ruling in Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc (‘Stephenson’)[4] stands for the proposition that, in response to any subpoena, CCI is required to, or obligated to redact all identifying details. In particular I consider that this will be a redundant exercise where those details relate to the plaintiff, or other persons known to and possibly represented by the plaintiff’s solicitors. The appropriateness or otherwise of redactions of identifying details is something that needs to be considered on a case by case basis. If the plaintiff does not object to the redaction of identifying details, then this may be something that does not need to trouble to Court. I note that in Stephenson, the plaintiff was specifically seeking unredacted documents.
(d) I would be reluctant to accept that the apparently very expensive process of redacting documents is automatically a necessary cost of responding to a subpoena which would always fall within the parameters of O42.11(1) of the Supreme Court (General Civil Procedure) Rules 2015. There may well be ways in which such costs could be avoided. For example, in a case where a plaintiff does not seek unredacted documents but the cost of redacting documents is exorbitant, then it might be possible for parties to agree that unredacted documents will be produced on an undertaking that inspection of documents will be limited to the instructing solicitor and counsel, that no use of identifying details would be made, and that any documents tendered into evidence would be tendered in a redacted form. This would limit the task of redacting documents, whilst offering protection to the privacy of other complainants.
[3][2020] VSC 615.
[4][2018] VSC 602.
I make these comments in the hope that parties may be able to explore practical ways of reducing the costs involved in this type of matter, consistent with their obligations under the Civil Procedure Act 2010 (Vic).
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