Di Cesare v Bishop Paul Bird - [2020] VSC 673

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…

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: [2020] VSC 673
Decision Date: 29 September 2020

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Di Cesare versus Bishop Paul Bird revolved around the objection to a subpoena issued by the plaintiff, Di Cesare, against the defendant, Bishop Paul Bird. The central issue in this case was whether the subpoena was valid and whether it served a legitimate forensic purpose. The plaintiff sought to subpoena various documents from Bishop Paul Bird that related to an allegation of sexual abuse. Bishop Paul Bird objected to the subpoena on several grounds, including that the subpoena was a fishing expedition, too wide, oppressive, and that the cost of compliance was disproportionate to the forensic purpose.

The court considered whether the subpoena served a legitimate forensic purpose, as required by the relevant case law. The court found that the subpoena was indeed for a legitimate purpose, in line with the principles set out in Woolworths Ltd v Svajcer [2013] VSCA 270. The court examined whether the subpoena was a fishing expedition and concluded that it was not, as the documents sought were specific and relevant to the case. The court also found that the subpoena was not overly broad or oppressive, and the cost of compliance was not disproportionate to the forensic purpose. The court relied on the principles from Spencer Motors Pty Ltd v LNC Industries Ltd [1982] to make these determinations.

In conclusion, the court dismissed Bishop Paul Bird's objections to the subpoena, finding that it was valid and served a legitimate forensic purpose. The court recognised the importance of protecting the privacy of sexual abuse victims and complainants while also ensuring that the legal process is not unduly hindered. The court's decision allows the plaintiff to proceed with their subpoena, which is essential for the proper administration of justice in this case.

Orders