| 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…
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- Case
- [2020] VSC 673
- Decision Date
CaseChat Overview and Summary
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.
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