Erenshaw v The State of Victoria
[2024] VSC 626
•11 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2022 04813
| MICHAEL ERENSHAW | Plaintiff |
| v | |
| THE STATE OF VICTORIA & ANOR (according to the attached Schedule) | Defendant |
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JUDICIAL REGISTRAR: | Baker JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 September 2024 |
DATE OF RULING: | 11 October 2024 |
CASE MAY BE CITED AS: | Erenshaw v The State of Victoria |
MEDIUM NEUTRAL CITATION: | [2024] VSC 626 |
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PRACTICE AND PROCEDURE — Discovery — Application for unredacted version of discovered document — Whether redaction is justifiable — Confidentially and privacy considerations in proceedings concerning historical child sexual abuse — Whether documents are public documents — Stephensen v The Salesian Society Incorporated & Ors; Easton v The Salesian Society Incorporated & Ors [2018] VSC 602 — Lenscak v Trustees of the Marist Brothers & Ors [2018] VSC 630 — Gunns Ltd v Marr [2008] VSC 464 — Lack of evidence before the Court as to the nature and status of the documents — Relevance and utility of the redacted information to the claim — Late timing of the application — Alternative arrangements to access documents — Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC | Ryan Carlisle Thomas |
| No appearance on behalf of the First Defendant | Victorian Government Solicitor | |
| For the Second Defendant | Mr J Plunkett of counsel | Carroll & O’Dea Lawyers |
TABLE OF CONTENTS
A.. Introduction.................................................................................................................................. 1
B.. The plaintiff’s claim and the application................................................................................ 2
C.. The redacted document............................................................................................................... 4
Further amended statement of claim......................................................................................... 5
Defence........................................................................................................................................... 6
D.. The parties’ submissions............................................................................................................ 8
E... Applicable principles.................................................................................................................. 9
F... Analysis........................................................................................................................................ 13
Is the redaction permissible?..................................................................................................... 13
Should inspection be ordered?.................................................................................................. 23
Alternative options............................................................................................................ 24
Timing................................................................................................................................. 26
G.. Conclusion................................................................................................................................... 28
JUDICIAL REGISTRAR:
A. Introduction
Mr Erenshaw is pursuing a claim against the Trustees of the Christian Brothers (referred to as ‘the Trustees’ for convenience) concerning sexual abuse that he alleges occurred while he was a minor in the 1990s. The litigation has been on foot since late 2022, and is set for trial in October 2024.
A dispute has arisen very close to the trial date concerning redactions that the Trustees have applied to a name in one of the documents they have discovered some time ago in the proceeding (referred to as ‘document 88’, which is the number of the relevant document in the Trustees’ affidavit of documents). The redacted name appears to be a plaintiff named in that document, which takes the form of two court documents in a Supreme Court institutional liability claim, and which feature allegations made against the same person who is alleged to have abused Mr Erenshaw in this proceeding.
Mr Erenshaw argues that the Trustees were not entitled to redact that plaintiff’s name, and seeks to identify him so that he might be called as a witness at the upcoming trial. The Trustees contend that the redaction of identities in complaint documents concerning historical institutional abuse is recognised as justifiable, and that Mr Erenshaw’s delay in bringing the application (apparently raising the matter for the first time in September 2024, just before trial, when the redacted documents were first given to him in November 2023) means that the Court should not make the orders sought in any event.
The application was referred to me for hearing and determination by an order of Irving AsJ made on 25 September 2024, pursuant to r 84.04(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’).
For the reasons that follow, I agree with the Trustees’ position on the application, and do not consider that the orders sought by Mr Erenshaw should be made.
B. The plaintiff’s claim and the application
Mr Erenshaw’s statement of claim includes allegations that he was sexually abused by a Brother Fogerty[1] while he was admitted to the St Vincent’s Boys’ Home in South Melbourne between 1994 and 1996.[2]
[1]The Trustees’ defence identifies this individual as a ‘Br Fogarty’, rather than ‘Br Fogerty’. It is clear the parties are intending to refer to the same individual, however in the absence of any clarity in this application about which spelling is correct, for the purposes of this ruling I will use the spelling identified in Mr Erenshaw’s statement of claim.
[2]Statement of claim dated 21 February 2023, [10] and [12].
The Trustees are alleged to have operated and had control over the Home during the relevant period,[3] and to have appointed Brother Fogerty to work as a carer of children (including Mr Erenshaw) there.[4]
[3]Ibid [9].
[4]Ibid [11].
Mr Erenshaw alleges that the abuse was caused by a breach by the Trustees of a duty of care they owed to him,[5] and that they are vicariously liable for the conduct of Brother Fogerty.[6]
[5]Ibid [20].
[6]Ibid [22].
The Trustees’ defence notes that they have been nominated (by consent) pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 as the proper defendant to the proceeding on behalf of the Congregation of Christian Brothers.[7] During the relevant period, the Congregation was an unincorporated association with a number of Provinces in Australia, of which the St Patrick’s Province of the Congregation of the Christian Brothers operated and managed the Home.[8]
[7]Trustees’ defence dated 28 April 2023, [4].
[8]Ibid [9].
The defence confirms that Brother Fogerty was a member of the Congregation of the Christian Brothers and that during the relevant period he was appointed to the Home.[9] It does not admit the abuse alleged by Mr Erenshaw.[10]
[9]Ibid [11].
[10]Ibid [12].
Timetabling orders were originally made in the proceeding by Associate Justice Irving on 27 March 2023. These orders included a requirement for all parties to complete discovery by 29 September 2023, and fixed a trial date of 15 October 2024.
The parties both filed an affidavit in support of their positions on this application. Mr Erenshaw relied on an affidavit of his solicitor, Sierra Callaway, affirmed 20 September 2024, which sets out the procedural history of the claim and the events leading to the present application. It exhibits a copy of the redacted document that is the subject of the application (which are described in more detail below), and states by way of conclusion:
We humbly request that the Court make the orders sought in the Plaintiff’s summons on the basis that the information contained in discovered document 88 is highly relevant to the liability issues in dispute, particularly that the Second Defendant was on notice as to Brother Fogarty’s propensity to sexually abuse minors and that the Plaintiff will be highly prejudiced should the unredacted document not be discovered.[11]
[11]Callaway affidavit at [15]. The nature of the prejudice asserted was not expanded upon in the affidavit.
The trustees relied on an affidavit of their solicitor, Joshua Dale, sworn 25 September 2024. It also sets out the relevant procedural history and background, noting the privacy interests of other complainants and the delay by Mr Erenshaw in raising the issue of redactions so close to trial, after having been in possession of the redacted documents for around ten months.
Taken together, the two affidavits provide a useful picture of the events that led to the present application, the key points of which are as follows:
(a)An affidavit of documents was filed on behalf of the Trustees on 14 November 2023.[12] The discoverable documents identified in that affidavit were served on the other parties on about 15 November 2023. 26 documents within this set were listed under the heading ‘Brother Fogerty Complaint History’ (including one document titled ‘Coded Complaint History of Brother Fogerty’ and 25 individual ‘complaint files’ identified by a six‑character code). The document in dispute in the present application is document 88 from within this set, titled ‘VLGF15 Complaint File’.
(b)Subsequently, Mr Erenshaw’s solicitors wrote to the Trustees’ solicitors on 2 September 2024, requesting unredacted copies of the 26 documents in the ‘Brother Fogerty Complaint History’ section of the affidavit of documents.[13] The Trustees resisted this request on the basis that disclosing the identities of other individuals who had made complaints about abuse by Brother Fogerty would be a significant breach of their privacy.[14]
(c)Further correspondence ensued, and by about 15 September 2024, Mr Erenshaw’s request had been reduced to seeking an unredacted copy of document 88 from the affidavit of documents.[15]
(d)In response, the Trustees maintained their opposition to producing an unredacted version of this document.[16]
(e)Mr Erenshaw’s solicitors then issued the present application on 20 September 2024, and served it on the Trustees on 23 September 2024.
(f)The application was listed for hearing by the Court that Friday, 26 September 2024, on the basis of an Interlocutory Application Information Form that Mr Erenshaw’s solicitors submitted indicating that the application was urgent.
C. The redacted document
[12]Affidavit of Shane Robert Wall sworn 7 November 2023.
[13]Dale affidavit, [8].
[14]Ibid [9].
[15]Ibid [13].
[16]Ibid [14].
‘Document 88’ in its redacted form was annexed to the affidavit of Ms Callaway’s affidavit.[17] It is comprised of what appear to be two documents formatted as court documents in a proceeding in the Supreme Court of Victoria’s Institutional Liability List. Because of the significance of the document to this application, it is useful to describe its relevant features at the outset.
[17]Callaway affidavit, exhibit ‘SC‑1’ at 12–23.
Further amended statement of claim
The first of the two documents in document 88 bears the title ‘Further amended statement of claim’, and has a date of 14 July 2020 (two previous dates, 5 March 2020 and 25 June 2020, are struck through to indicate the removal of that text from prior versions of the document). It has sequential page numbering commencing with ‘1’ on its first page. It does not have a court file number included in the document heading, but does have the prefix ‘S ECI‑2020‑’ included, in a manner sometimes used by practitioners when filing a statement of claim accompanying a writ, when there will not yet be a proceeding number allocated to the proceeding to include. The document does not bear a Supreme Court seal or any other annotations to indicate that it had been filed with the Court via RedCrest.
The only redactions applied to the document are over the plaintiff’s name in the document header, and the plaintiff’s date of birth in the first paragraph of the pleading.[18]
[18]I note that the plaintiff’s date of birth was left unredacted in the particulars to the final paragraph of the pleading, detailing his claim for special damages. As a result, I anticipate that there is no basis upon which it could be said that this information remains confidential.
The defendant in the document is identified as ‘Trustees of the Christian Brothers (as the proper defendant for the Oceania Province of the Congregation of the Christian Brothers pursuant to the Legal Identity of Defendants (Organisational Child Abuse) Act 2018’. It appears to be accepted that for all practical purposes, this represents the same defendant as the defendant in Mr Erenshaw’s claim.
The tracked changes in the document suggest that one of the two sets of amendments to the statement of claim was to reflect the nomination of this defendant as the proper defendant: the document is indorsed in underlined text (indicating an amendment) as being filed ‘pursuant to Order 85.03 of the Supreme Court (General Civil Procedure) Rules 2015’. The prior defendant’s name, ‘The Oceania Province of the Congregation of the Christian Brothers’ is struck through, and the current defendant’s name is underlined. The word ‘The’ is also struck through and underlined in the current defendant’s name, suggesting the word might have been incorrectly included in the first set of amendments when including reference to the proper defendant, and then corrected subsequently.
Other than those amendments apparent to the document heading, there are no amendments to the body of the pleading that are apparent on the face of the document. Given the redaction it is not apparent whether there were any amendments made to the plaintiff’s name. Further, as the exhibited document is in black and white, it is not readily apparent what changes were part of the first set of amendments and what changes were part of the second (and obviously any changes that were not underlined or struck through would not be apparent from this document alone, without a prior version available to compare it to).
The body of the statement of claim pleads a negligence claim against the defendant in respect of sexual and psychological abuse that the plaintiff in that matter alleges was perpetrated by Brother Fogerty. The alleged abuse was said to have occurred in 1971 to 1973, at Therry College in Broadmeadows, where Brother Fogerty was the Principal. Therry College was said to have been operated during this period by the St Patrick’s College of the Christian Brothers.
The statement of claim includes allegations that on two or three occasions while Brother Fogerty was abusing the plaintiff, the Vice Principal of the school entered the room, but left without saying anything. The plaintiff also alleged that he disclosed the sexual abuse to his local priest (including stating that the Vice Principal was aware of it), asking the priest to speak to Brother Fogerty about it.
The first page of the document identifies the name and contact details of the plaintiff’s solicitors, as well as a file reference number used by those solicitors for this proceeding.
Defence
The second document in ‘document 88’ is titled ‘Defence’ and is dated 29 May 2020, and therefore appears to predate the two sets of amendments made to the statement of claim. The defence is said to respond to the plaintiff’s ‘statement of claim indorsed on the writ and dated 6 March 2020’ (which is close, but different, to the date of the statement of claim referred to above, of 5 March 2020). The defendant is named as ‘The Oceania Province of the Congregation of the Christian Brothers’, and the plaintiff’s name is redacted. The redaction applied over the plaintiff’s name appears to be about the same size as the redaction over the plaintiff’s name in the statement of claim.
The document bears a compete file number for a proceeding issued in the Supreme Court of Victoria in 2020 (essentially completing the prefix that was included in the statement of claim). The file is evidently not a current Supreme Court proceeding, and there is no information available about the proceeding beyond what is included in the parties’ affidavits (which is confined to the exhibited version of document 88).
The defence does not bear a court seal or any annotations indicating an accepted filing in RedCrest. The document includes the details of the practitioner acting for the defendant (a different firm to the solicitors acting for the Trustees in Mr Erenshaw’s proceeding), including a file reference number.
In relation to the plaintiff’s allegations, the defence clarifies Brother Fogerty’s title in the relevant period but admits his role at Therry College in the relevant period. It identifies that the defendant does not admit the abuse alleged (or otherwise denies the allegations in that paragraph), and does not know and cannot admit the matters identified in the paragraphs of the statement of claim that correspond to the locations in the ‘further amended statement of claim’ document where allegations are made concerning the knowledge of the Vice Principal and the plaintiff’s local priest. The defence appears on its face to correspond with the paragraph numbering used in the statement of claim, but it is not certain that the body of the further amended statement of claim in document 88 is the same as the body of the pleading that the defence is responding to.
D. The parties’ submissions
The parties did not provide any written submissions concerning the application (I infer, because of the urgent timing of the hearing requested by Mr Erenshaw) but made oral submissions at the hearing on 26 September 2024.
Mr Erenshaw emphasised that the Trustees bear the onus of establishing that a redaction of an otherwise discoverable document is justified. He says that as a pair of court documents, document 88 represents a public document, and there can be no confidentiality in its contents unless and until such confidentiality is claimed or ordered (for example, through the imposition of a pseudonym by a court). There is no evidence to suggest that this has occurred here.
In relation to his current claim, Mr Erenshaw says that the redacted name in document 88 is relevant to live issues between the parties. He argues that two key issues in his case will be whether the alleged abuse occurred, and whether the Trustees were negligent because they were or should have been on notice of risks posed by Brother Fogerty. In respect of the former issue, evidence of prior abuse may assist in tendency arguments. In respect of the latter issue, evidence about prior observations by the vice‑principal employed by the Christian Brothers, or disclosures by the redacted plaintiff to his local priest, may be relevant to establishing knowledge on the Trustees’ part. In respect of both issues, Mr Erenshaw says that the redacted plaintiff represents a witness whose evidence could assist his case.
In contrast, the Trustees noted that the nature and status of document 88 has not been established in this application, and it is not apparent whether the material does in fact consist of publicly available documents. If the documents are court documents from a court proceeding, there is also no information available as to whether there were other protective orders or arrangements put in place in that proceeding, such as pseudonym or non‑publication orders. In passing, it was also noted that to the extent the documents are in fact public documents already, arguably they may not need to be discovered by a defendant in any event, though this submission was not expanded upon.
The Trustees relied on the decisions of Stephensen v The Salesian Society Incorporated & Ors; Easton v The Salesian Society Incorporated & Ors,[19] and Lenscak v Trustees of the Marist Brothers & Ors,[20] in support of the significance of the privacy interests of individuals who make complaints about historical child sexual abuse. They noted that in those cases there was quite extensive affidavit material put on by the plaintiffs about the information sought to be disclosed, which is not the case here. The Trustees argued that in situations like the present one, the applying party faces a high threshold to establish an entitlement to the confidential information, and the evidence in the present case falls a long way short of doing so.
[19][2018] VSC 602 (‘Stephensen’).
[20][2018] VSC 630 (‘Lenscak’).
Further, the Trustees questioned Mr Erenshaw’s assertions about the relevance of the redacted name. They noted that the statement of claim does not actually contain an allegation about their prior knowledge of abuse by Brother Fogerty. Further, to the extent that such an argument might be interpreted to form part of the broader negligence arguments raised in the pleading, they note that the circumstances of the claim in document 88 are very different to those in Mr Erenshaw’s claim, so tendency arguments and the evidence of an additional witness to support them may only have borderline relevance to the present claim anyway.
E. Applicable principles
Mr Erenshaw relied upon comments by Barker J in MG Corrosion Consultants, Proprietary Limited v Gilmour[21] concerning the appropriate course to be adopted in relation to the redaction of confidential material in discovered documents. In that case, the Court stated, relevantly:
But I repeat that, in my view, it is inappropriate, as a matter of practice, without prior agreement between the parties or order of the Court, for the discovering party unilaterally to decide not to produce a document because it considers it, or parts of it, are not relevant or because they consider information to be confidential.
As to redaction, in my view, the administration of justice is best served first by the parties endeavouring to agree on redaction where one party considers that redaction is appropriate, or, if the parties are unable to come to some agreement about that, to apply to the Court to obtain a ruling on relevance. One can understand that in some circumstances – for example where a party has a diary in which many personal and obviously irrelevant matters are set out, as well as many relevant matters – where, for whatever reason, the parties are incapable of agreeing about what, if any, redaction is appropriate, questions of relevance and redaction will have to be decided by the Court.[22]
[21][2011] FCA 1514.
[22]Ibid [18]–[19].
This position can be contrasted with the comments of Kaye J in Gunns Ltd v Marr,[23] which noted that:
Strictly, a party is required to produce for inspection the whole of a document discovered by it, notwithstanding that parts of that document may be irrelevant to the issues in the case. However, there has now been a long established practice whereby a party, making inspection of a discovered document, is entitled to seal up or mask parts of the document which are irrelevant to the proceeding, and of which the party resists making inspection. In particular, it has been recognised that a party is entitled to redact irrelevant parts of a document discovered by it, where the party has a legitimate claim on the basis of confidentiality or the like.[24]
[23][2008] VSC 464.
[24]Ibid [30].
In relation to the determination of any disagreement that might arise as to the appropriateness of redactions in discovered documents, his Honour identified that ‘There is now a substantial body of Australian authority … which supports the proposition that, where there is a dispute as to the right of a party to redact part of a discovered document, it is for the Court to determine, on the material before it, whether that party had a right to do so’.[25]
[25]Ibid [32].
Where such a dispute arises, the decision in Gunns identifies a number of frequently cited principles to be applied:
a.‘Ultimately, the onus lies on the party resisting production of the whole of the document to establish an appropriate basis for doing so’.[26]
b.Courts have a discretion as to whether or not to order discovery or inspection, and when determining whether a redaction to a discovered document is justified in this context, the test to be considered is ‘what is necessary to ensure the attainment of justice between the parties’.[27]
c.The bases upon which a party may be entitled to redact irrelevant parts of discovered documents have not been defined, however the authorities recognise privacy and confidentiality as relevant interests in this regard.[28]
[26]Ibid [33].
[27]Ibid [34].
[28]Ibid [35].
These principles were cited with approval more recently by Nichols J in Stallard v Treasury Wine Estates Ltd (No 3),[29] in which her Honour was considering a dispute like the present one, concerning whether redactions placed over a portion of a defendant’s discovered documents were permissible. In identifying the relevant principles to be applied, Nichols J noted:
The assessment of where justice lies in a particular case must recognise that as a starting point, the public interest in the production of a litigant’s private documents is considered to outweigh the private interest in the maintenance of confidentiality where those documents are relevant to the dispute, and that the fact that documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. It must also take into account, however, that discovery is “but a tool to be used in the pursuit of justice and the right to discovery and inspection is not without its limits”.[30]
[29][2022] VSC 246.
[30]Ibid [6(i)], citing Mobil Oil Australia Pty Ltd & Anor v Guina Developments Pty Ltd & Anor (1996) 2 VR 34.
Further, her Honour observed that ‘In a context in which a party sought to resist production of documents on the grounds of confidentiality, Hayne JA emphasised in Guina that assessing what is necessary for the attainment of justice in a particular case will turn on the facts of that case and the nature, and content of the disputed documents will ordinarily be of great importance in deciding that question’.[31]
[31]Ibid [7].
In the context of cases within the Supreme Court of Victoria’s Institutional Liability List, the redaction of names and identifying details of individuals who have made previous complaints of child sexual abuse is not uncommon. This practice was considered in detail by Clayton JR (as her Honour then was) in Stephensen v The Salesian Society Incorporated & Ors; Easton v The Salesian Society Incorporated & Ors.[32] In that case, the redaction of identifying information was considered to be justified based on the evidence in that application, including relevantly because:
Further, and most importantly, disclosing the identity of other potential victims would involve a significant breach of the privacy of those persons. I am not satisfied that the imposition of a confidentiality regime at trial is sufficient protection for individuals who may suffer unknown and unknowable repercussions from being unexpectedly contacted by the plaintiffs or their lawyers and asked to revisit what is likely to be a traumatic episode in their lives. There may be individuals who made complaints to CCI but did not go to the police, did not participate in any criminal prosecutions and have not taken steps at common law. There may be very good reasons why they have taken these steps. They have an expectation that the details of their allegations provided to CCI will be kept confidential. Whilst their evidence may be of assistance to the plaintiffs, I am not persuaded that the plaintiffs are unable to prosecute their cases without it.[33]
[32][2018] VSC 602.
[33]Ibid [54].
The redaction of non‑party complainants’ identifying details in discovered documents has occurred in many Institutional Liability List proceedings in the Court in recent years: see, for example, Levy v Bishop Paul Bernard Bird [2020] VSC 615 at [37], Lenscak v Trustees of the Marist Brothers & Ors (No 2) [2021] VSC 49.
Additional protections or safeguards concerning the identities of individuals who mate complaints concerning child sexual abuse, and the content of the disclosures they make, are found in a number of other statutory provisions as well as practices and procedures within the Court — for example, s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 4 of the Judicial Proceedings Reports Act 1958 (Vic), and certain procedures adopted by the Court concerning the management of proceedings in the Institutional Liability List. These and other provisions broadly reflect the understanding that sexual offences (particularly those committed against children) are often traumatic and under‑reported,[34] that disclosure of identifying details of individuals who raise complaints or reports of previous sexual abuse may itself be harmful to them, and that the harm or stigma associated with such disclosures may deter individuals from reporting or disclosing abuse, and bringing or pursuing proceedings concerning such matters.[35]
[34]See, e.g., s 32AB, Evidence (Miscellaneous Provisions) Act 1958 (Vic).
[35]See, e.g., BK v ADB [2003] VSC 129; ABC v D1 & Ors [2007] VSC 480.
In considering the plaintiff’s application, the Court is required[36] to seek to give effect to the overarching purpose in s 7 of the Civil Procedure Act 2010 (Vic), ‘to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute’.
F. Analysis
[36]Civil Procedure Act 2010 (Vic) s 8.
There are two main issues that require consideration in this application. First, whether the redaction in document 88 is warranted (which, in the peculiar circumstances of this application, requires consideration of what document 88 actually is). Second, whether the Court should exercise its discretion to order inspection of the underlying document.
Is the redaction permissible?
The appropriateness of a redaction to a discovered document will depend on the facts and circumstances present in a particular case.[37] It is necessary here to be clear about what document 88 actually is or is not, in order to properly assess any confidentiality or privacy interests that might be affected by it, as well as what use its redacted contents might have in Mr Erenshaw’s claim.
[37]Levy v Bishop Paul Bernard Bird [2020] VSC 615, [37].
No doubt due to the expedited nature of the application (proceeding to hearing within a week of the summons being issued, and requiring expedition due to the trial being scheduled to commence approximately a fortnight later), the evidence available does not appear to be ideal. There is very little information available about the provenance or status of document 88, despite it appearing to have been well within the power of both parties to establish this.
Despite this unfortunate position, the Court’s task is to assess whether the redaction is warranted on the basis of the material that is before it.[38] In practice, here that means assessing the redaction based on what is apparent on the face of document 88, in the context of the circumstances of Mr Erenshaw’s claim and the broader principles and practices applicable to claims pursued in the Institutional Liability List.
[38]Gunns, above n 23, [32].
The authorities identified above concerning the use of redactions over discovered documents in litigation have focused largely on the protection of parties’ own confidentiality interests, leading to the principles identified in Gunns that the Court’s task is ultimately to consider ‘what is necessary to ensure the attainment of justice between the parties’. The position in applications in institutional abuse litigation is often slightly different to other litigation in which these issues arise, in that the confidentiality sought to be protected is usually not that of a defendant but rather a non‑party, in this case individuals who have previously made complaints or allegations of historical child sexual abuse. Having regard to the specific protections in place for such individuals as set out above, and the approach taken in the authorities above such as Lenscak and Stephensen, it appears that the principle articulated in Gunns is likely better understood in this context as referring to ‘parties’ in the broader sense of those with an interest in the disclosure or confidentiality of the information, rather than simply parties to the immediate litigation.
In order for the redaction to be permissible, there does not appear to be any dispute that a principal consideration is whether the information sought to be protected is irrelevant and confidential.[39] The assessment of both of these matters depends on understanding what the affected document actually is.
[39]Ibid [30].
A pleading that is filed with the registry may be taken to ordinarily be public, as Mr Erenshaw suggests: r 28.05(1) of the Rules provides a right of access to copies of documents filed in a proceeding in the Court. That right is not absolute, however. Sub‑rule (4) prevents the inspection or copying of documents that the Court has ordered are to remain confidential. Sub‑rule (5) further provides, relevantly, that ‘A person not a party may not, without leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary … ought to remain confidential to the parties’.
Moreover, for matters issued in the Institutional Liability List of the Court, court files are generally treated as confidential to non‑parties until after a first directions hearing, in order to allow parties an opportunity to make any applications that might be required concerning confidentiality or the use of pseudonyms. A first directions hearing will typically (although not always) occur at some stage after a defence has been filed, but before further interlocutory steps take place.
In the present application, there is no evidence from either party as to whether:
a.The documents comprising document 88 were ever filed;
b.The proceeding referred to in document 88 progressed to a stage where the court file would have been accessible to non‑parties as a matter of course;
c.The documents in document 88 were affected by any confidentiality (or similar) orders made by the Court; or
d.The Prothonotary had determined at any point previously that those documents ought to remain confidential to the parties, or otherwise what the Prothonotary’s determination would have been if it was sought.
In the absence of any such evidence from the parties, it is therefore necessary to see whether any conclusions can be drawn from the documents themselves in order to shed light on the question of whether the redacted material is properly characterised as private or confidential. Unfortunately, there are a number of features of the two documents comprising document 88, which make the status of those documents unclear.
The documents obviously have the form of court documents, and the defence at least bears a Supreme Court file number, strongly suggesting that there was a filed proceeding pursued by that plaintiff.
The statement of claim does not include a court file number, however, despite containing other tracked amendments apparently made since an earlier version of the statement of claim had been produced. This might suggest that the document was not filed, or else that the document was annexed to and filed together with an amended writ, so that the court file number would have only been included on the first page of the writ. The statement of claim contains page numbering starting with ‘1’, though, so it appears on its face to have been prepared as a separate document to the writ, at least.
Neither the statement of claim nor the defence bears a copy of the Court’s seal or other standard annotations indicating that the documents were filed via RedCrest. On one view, this could suggest that the documents are less likely to be versions of pleadings that were filed with the Court. The statement of claim in particular would most likely have been a document served on the Trustees by the plaintiff’s lawyers, and as a matter of practice it seems unlikely that such lawyers would serve a court document unless and until they knew it had been accepted for filing by the Court. Had this occurred, it is likely that the version served would have included the Court seal and RedCrest annotations, which may suggest that it is more likely that the statement of claim in document 88 is not a filed court document.
The absence of a seal is a meaningful feature: although the parties did not address this point, r 40.08(1) of the Rules provides that ‘[a] document purporting to be sealed with the seal of the Court shall be admissible in evidence without further proof’. By implication, the absence of a seal indicates that evidence is required to establish a document’s status as a filed court document. No such evidence is available here beyond the documents’ contents themselves.
The defence is unsealed (as is the statement of claim), but it would have been prepared by the Trustees’ lawyers, meaning it is much more likely that they would possess an un‑sealed copy of such a court document as an ‘office copy’ for the purposes of r 28.05(2) of the Rules. The statement of claim would have been prepared by the plaintiff’s lawyers, but evidently ended up in the possession of the Trustees’ lawyers, as it was discovered by the Trustees in this proceeding. If it were a filed document served on the Trustees, it is most likely that the document would have included a seal.[40]
[40]See Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 28A.03(2).
The defence contains a court file number, while the statement of claim does not. It is most unlikely that a statement of claim omitting a court file number would have been accepted for filing by the Registry. This also weighs against the suggestion that the statement of claim is a filed court document.
Further, the statement of claim does not contain any amendments in its body referring to the nomination of a proper defendant under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018. Rather, the body of the document contains an apparently unamended paragraph (at paragraph 3) referring to the defendant being a non‑governmental organisation and sued pursuant to s 13 of that Act. Once a proper defendant had been nominated under that Act, this paragraph would not be required: the proper defendant would be sued pursuant to s 7 instead, and the statement of claim would ordinarily be amended to that effect. Although not determinative, this is another feature suggesting that the statement of claim in document 88 might not be a complete or final document that was placed on a court file.
The amended statement of claim also post‑dates the defence that is included in that document. It therefore may not be safe to assume that the allegations contained in that pleading were included in the original statement of claim that was filed.
That said, the defence does contain paragraph numbering and responses (to the extent they are more expansive statements than simple admissions or denials) that correspond with the paragraphs of the statement of claim. Further, the statement of claim in document 88 does not appear to contain any tracked changes amongst the substantive paragraphs in the body of the document. This would suggest that there was a previous version of the statement of claim (annexed to the writ dated 6 March 2020, based on the introductory text to the defence) containing the same (or at least similar) allegations as the one in document 88, and that it is more likely that this earlier version was filed with the Court (given the likelihood that the defence responding to it was filed). In addition, the pleading contains some tracked changes in the heading, but none in its body, suggesting those paragraphs may not have been changed (though this is uncertain).
The position is therefore somewhat unclear. On balance I consider it to be more likely than not that the defence in document 88 was filed with the Court, however I do not draw the same conclusion about the version of the further amended statement of claim included in document 88. The document’s date, page numbering, content, and lack of a court seal or RedCrest annotations make its status more uncertain: it could possibly have been filed in that form, however there are other equally plausible possibilities that could not be excluded, for instance, that the document was provided in a draft form in the course of negotiations between the parties, or that it was an unfiled version sent to the Trustees’ lawyers for the purposes of obtaining their consent to it being filed. Overall, I am not satisfied that it has been shown to be more likely than not that the version included in document 88 represents a filed court document.
At this juncture, it is useful to reiterate that neither party put on any material to positively assert what the documents were or were not. Counsel for the Trustees noted in the hearing that there was nothing to indicate whether the documents were in fact public documents, despite the Trustees evidently being a party to the litigation referenced in that document and therefore presumably in a position to know for sure (and noting, again, that they bear the onus of establishing that the redaction was warranted). Equally, the documents identify a court file number and the identity and contact details of the lawyers acting for the plaintiff in the relevant proceeding, so it would have been a simple matter for Mr Erenshaw’s lawyers to enquire about the status of the file and put the status of the documents beyond doubt. This did not occur.
Looking at the question of whether the redacted information in document 88 is properly private or confidential, then, I think it is important to bear in mind the particular context of institutional liability claims that I referred to above. Particular protections have been put in place over time concerning this category of claim, both by legislation and as matters of practice and procedure, with a view (at least in part) to preventing or minimising the infliction of harm as a result of litigation processes, and to reduce the risk that court proceedings will discourage individuals from making relevant complaints or disclosures, or pursuing proceedings where appropriate. In my view, this setting suggests that a cautious approach should be adopted to the question raised by this application where the evidence available is incomplete or uncertain.
Further, as observed in the authorities identified above, it is at this stage a reasonably commonly occurring practice in the Institutional Liability List for documents identifying prior complaints to be discovered with the identities of complainants redacted. Identifying information in such documents gives rise to a recognised privacy interest that is necessary to bear in mind.
In the absence of adequate evidence to establish that the statement of claim in document 88 was a public document, it appears to me that the appropriate approach to take in this list is to treat that document as of an equivalent character to other kinds of ‘complaint document’ referred to in authorities such as Stephensen and Lencsak. On that basis, and in the context of the present application, I consider there is a legitimate confidentiality interest present.
As to the question of the relevance of the redacted name, Mr Erenshaw submitted that it may be relevant to establishing that the alleged abuse occurred (by way of tendency evidence), as well as establishing negligence on the part of the Trustees (by way of proving prior knowledge of the risk posed by Brother Fogerty). The only piece of information that is unknown to Mr Erenshaw in document 88 is the identity of the plaintiff.[41] As such, the significance of the information sought appears to primarily be that it could enable Mr Erenshaw to identify a witness who might assist his claim.
[41]As noted above, the plaintiff’s date of birth was disclosed at the end of that document.
While this may be true in the abstract, I think the setting of the present application should be borne in mind when assessing the practical utility of the orders being sought. The trial of Mr Erenshaw’s claim was two weeks away when the application was heard, and closer still by the time these reasons are provided. Mr Erenshaw’s lawyers evidently do not know who the redacted plaintiff is, so upon learning his name they will need to take steps to locate him and then, presumably seek to make contact with him. It is not self‑evident that this would be a quick process.
Once (or more accurately, if) the plaintiff is located and contacted, further time would seem to be required to confer with him, in order to understand what his evidence would be if called, and ascertain whether he would be willing to give evidence at Mr Erenshaw’s trial.
Alternatively, the issue and service of a subpoena would also require time, and given the circumstances of this case and the evidence Mr Erenshaw presumably expects that individual might give, may also require time for the ventilation of any disputes concerning that course of action.
The result is that in practical terms, given the very late stage at which this application is made, it seems very unlikely that the disclosure of the redacted plaintiff’s identity would be able to make a difference to the factual findings that will be made at Mr Erenshaw’s trial.
Putting the timing issues to one side, there does seem to be some merit to this position advanced by the Trustees as to the relevance of the name to tendency arguments: the events referred to in document 88 occurred over two decades prior to the events relevant to Mr Erenshaw’s claim and in apparently quite different circumstances, so it does appear that their significance and utility to as evidence of a tendency could be quite confined.
That said, there is no evidence in this application about whether there are other matters that will be relied upon by Mr Erenshaw to support any tendency arguments: it is possible there are other incidents Mr Erenshaw will point to at trial in this regard. However, these are not apparent in the statement of claim, and no tendency notice appears to have been filed or put in evidence in this application, so I would not proceed upon an assumption the redacted name will be just one additional piece added to an existing tendency argument planned to be run at trial. As such, the significance of the name to this issue appears limited, at best.
As to the relevance of the redacted name to arguments about prior knowledge, the Trustees submitted that there was in fact no allegation pleaded about prior knowledge in Mr Erenshaw’s statement of claim. This appears to be true, however for completeness (although Mr Erenshaw did not raise this in the course of the hearing) it should be noted there are particulars of negligence concerning the Trustees in paragraph 20 of the statement of claim referring to their ‘(d) Failing to report and act upon complaints of abuse so as to deter abuse’ and ‘(h) Permitting and/or allowing Brother Fogerty to be in the Home or remain at the Home when his behaviour was suspected or known to have been inappropriate or unlawful’.
No further and better particulars are apparent on the court file in relation to these allegations to provide any further context. Read in concert with the surrounding particulars in that paragraph, and the balance of the pleading, I think it is tolerably clear that particulars (d) and (h) are referring to events at the St Vincent’s Boys’ Home in the period being addressed by the plaintiff’s claim, not broader allegations as to pre‑existing knowledge on the part of the Trustees from many years before. While I accept that prior knowledge of a risk will have a bearing on questions of foreseeability in any event, the context of the pleading suggests a focus much closer in time to the events in Mr Erenshaw’s claim, and given the requirements of r 13.10(3)(b) of the Rules, I anticipate that in order to pursue the course now being contended for, it probably would have been necessary to first amend the statement of claim to plead issues of prior knowledge specifically. I am therefore inclined to agree with the Trustees’ position on this issue.
In summary, therefore:
a.There is authority to support the proposition that ‘complaint documents’ held by a defendant may be discovered in a redacted form to protect complainants’ identities in appropriate cases;
b.Neither party has identified any particular evidence to establish what the documents in document 88 are other than what is apparent on their face;
c.It has not been established that the statement of claim in document 88 was filed with the Court;
d.There is a legitimate confidentiality interest arising in respect of the name of a complainant held by the Trustees in this context;
e.The application has been made at a point in time where the disclosure of the name appears unlikely to be of much practical use to Mr Erenshaw given the proximity of the trial;
f.To the extent the redacted name has relevance to Mr Erenshaw’s claim, it is marginal; and
g.In the setting of institutional abuse litigation, I consider a cautious approach to issues of this nature is warranted in situations of uncertainty.
The comments made in Stephenson above are relevant to bear in mind concerning the reasons why the unwarranted disclosure of complainants’ identities is undesirable. The consequences of the disclosure sought for the redacted plaintiff are unknown but could be significant. Even if it is accepted that he commenced a proceeding in the Court, it does not necessarily follow that he has been shown to have lost or waived any right to privacy or confidentiality he may have had. The proceeding could have been covered by a confidentiality or pseudonym order subsequently in a manner that is not in evidence, it might have resolved or been withdrawn prior to the point at which the file would have become unrestricted to non‑parties (indeed, it is conceivable that a desire to avoid public attention or knowledge could be a factor motivating a plaintiff to resolve a proceeding in this list), and it is not certain that the allegations in the statement of claim that drew the attention of Mr Erenshaw were ever filed in a court document.
All of these uncertainties were capable of being answered definitively with evidence in this application, but were not.
Given these circumstances, I think particular care here is required to avoid risks of harm arising from the conduct of civil proceedings, especially when the person who may face that risk is not on notice of the application and has not had any opportunity to protect or advocate for their own interests.
As such, where the benefit to Mr Erenshaw of disclosure of the name is likely quite modest,[42] where there is a legitimate interest in the confidentiality of the name, where the deficiencies in the application were capable of being addressed with evidence but were not, and where there is at least a potential risk of harm to a non‑party to the proceeding arising from the orders sought, in my assessment ‘what is necessary to ensure the attainment of justice between the parties’ at present is the maintenance of the redactions.
[42]Noting, in this regard, that based on the statement of claim in document 88 there are at least two other relevant witnesses that Mr Erenshaw’s lawyers could have been investigating to obtain relevant evidence, being the vice‑principal and the plaintiff’s local priest. There was also the possibility that there are other relevant witnesses from Therry College who might be relevant to Mr Erenshaw’s claim. There was no evidence in this application as to whether such investigations have been pursued by Mr Erenshaw’s lawyers, however that is not a matter that is relevant to the determination of the present issue.
I therefore consider that the preferable view in the circumstances of this application is that the redaction of the name in document 88 was justifiable.
Should inspection be ordered?
In the event I am wrong about the above conclusion, nonetheless I consider that the Trustees’ arguments about the utility and timing of this application are well founded, and had it been necessary to do so I would have declined to make an order providing for the inspection of a further version of document 88 in the present circumstances.
There are two principal reasons for this. The first concerns the availability of less intrusive options for obtaining the information that were not pursued. The second concerns timing.
Alternative options
The potential problems arising from requiring the disclosure of the redacted name on the basis of incomplete or uncertain evidence are outlined above. In such circumstances, it seems to me to be relevant to the question of whether the Court should exercise its discretion to understand whether the orders sought are in fact necessary, or are the most appropriate way to achieve the outcome sought.
There are at least two options apparent from contents of document 88 that could have been used by Mr Erenshaw’s lawyers here. The identity and contact details of the lawyers who acted for the plaintiff in the relevant proceeding are identified in the documents: Mr Erenshaw could have sought to make an enquiry of the plaintiff via those lawyers to see whether he was willing to be identified or assist. This would have had the benefit of avoiding taking the plaintiff by surprise and allowing a familiar intermediary to contact Mr Erenshaw and possibly respond on his behalf. It is obviously not certain that the lawyers would have been willing to communicate that request, however nonetheless it seems clear that this approach at least has the potential to be more supportive and possessing less risk than would the prospect of unknown lawyers approaching him some years after his litigation had concluded, advising that they had obtained a court order to access his name and seeking that he give evidence almost immediately about the sexual abuse he disclosed some years ago.
Similarly, a court file number for the relevant proceeding is included on the defence in document 88, which would have enabled Mr Erenshaw to request to search that file. Such a process would most likely have enabled consideration to be given to the request informed by the full context and history of that file,[43] and in appropriate circumstances could have afforded the plaintiff in that proceeding an opportunity to be heard in relation to the request, if appropriate.
[43]See, e.g., the process referenced in Stephensen v The Salesian Society Incorporated & Ors; Easton v The Salesian Society Incorporated & Ors [2018] VSC 630 at [44]–[45].
Neither option was pursued by Mr Erenshaw’s lawyers here. That fact, combined with the status of the other evidence presented in this application, means that there is no certainty as to the position of the redacted plaintiff about their identification or willingness to assist, no certainty as to whether any confidentiality orders or pseudonym orders were made in their proceeding, and no certainty about whether there are any other considerations affecting that proceeding that might be relevant to whether disclosure of the plaintiff’s identity should be required of the Trustees. This consequence suggests that the present application is likely a less desirable method of achieving the outcome sought by Mr Erenshaw than the available alternatives.
In light of the particular considerations and sensitivities that arise in this kind of litigation, and the policy reflected in the statutory and procedural protections set out above, it seems to me to be preferable here to pursue methods that infringe less heavily upon any confidentiality or privacy interests that may arise, before pursuing methods that may overlook or disregard the agency or interests of those individuals who are sought to be protected by those arrangements, or which might involve a determination of issues that is not fully informed by all relevant considerations.
The fact that these other less intrusive options had not been attempted by Mr Erenshaw therefore weigh strongly against the Court exercising its discretion to order the inspection of the unredacted documents here, in my view.
Put another way, the prejudice to Mr Erenshaw in refusing the present application is reduced by the fact that there are (and always have been) other methods available to him to seek to identify the redacted plaintiff, should that plaintiff wish to assist in this case. Mr Erenshaw’s position in this application would have been stronger had there been evidence of him attempting to do so and, in effect, having exhausted his other available options.
Timing
As to the second issue concerning timing, it is not in dispute that the redacted version of document 88 was provided by the Trustees’ to Mr Erenshaw in mid‑November 2023. There is no evidence of Mr Erenshaw’s lawyers agitating any issues concerning the redacted name until September 2024, a month before the trial was listed to commence.
Following correspondence between the parties, Mr Erenshaw’s lawyers issued an application and sought an urgent hearing, which was able to be listed in late September 2024, about a fortnight before the listed trial date.
Further, although not factors that I rely on for the purposes of determining this application, the evidence relied upon in the application appears to be more limited than what would have been expected had an opportunity been available for the parties to think through the application in detail. The parties also attended the hearing of the application without having provided the Court with submissions or details of the authorities they intended to rely on in advance, only raising the authorities they wished to refer to at the outset of their oral submissions. This meant that in the context of the directions list in which the urgent hearing was heard, it was not possible to fully deal with the application that day and some further delay was introduced as that material had to be considered and reasons prepared.
No explanation was offered for the delay in bringing the application between November 2023 and September 2024. Mr Erenshaw’s position was that one was not required, and the question of delay was irrelevant, as the Trustees bore the onus of justifying the redaction.
I do not agree with this view. Parties and practitioners have clear and well‑understood obligations to act promptly and minimise delay in the conduct of civil proceedings.[44] On the evidence available, it is difficult to reconcile the observance of those obligations with the circumstances apparent in this application.
[44]Civil Procedure Act 2010 (Vic), s 25.
The timing of the application on 26 September 2024 meant that the parties’ preparations for the trial listed on 15 October 2024 were potentially disrupted, or the trial date put at risk. The unsuccessful party would also potentially be prejudiced by facing a choice between the curtailment of their time to consider their appeal rights and the maintenance of the trial date.[45] In addition, the need for the Court to accommodate a request for an urgent hearing of this application also means that judicial and court‑staff resources were necessarily diverted away from other matters already listed in September and October 2024. Consequences such as these would have been avoided had the application been made earlier.
[45]Supreme Court (General Civil Procedure) Rules 2015, r 84.06(1)(a).
Practitioners regularly appearing in the Court’s personal injury lists are by now well aware of the expectation that they will act promptly and efficiently in the conduct of litigation, and that substantive matters that are able to be dealt with at an earlier stage of a proceeding should be attended to prior to the parties attending a mediation.[46] That expectation is not merely aspirational: it is a necessary requirement for practitioners to observe in order to enable the effective functioning of lists that are experiencing consistent growth and sustained record‑high levels of pending cases.
[46]See, e.g., Supreme Court of Victoria, ‘Case Management and Listing Updates – Institutional Liability List’, May 2024.
In the absence of an explanation for the delay, or other exceptional circumstances as to why the matter raised in this application could not have been raised at an earlier stage, I do not consider that the order for inspection should be made now. Doing so would jeopardise the trial date or the parties’ preparations for trial, and at this late stage would be contrary to the Court’s requirement to facilitate the efficient and timely resolution of the real issues in dispute. While I note the submission in Mr Erenshaw’s affidavit material that the plaintiff would be prejudiced if the application is not allowed,[47] to the extent that is true I do not consider any such prejudice to be unfair or unjust. It is simply the consequence of the choices that have been made as to timing in this litigation.
G. Conclusion
[47]Callaway affidavit, [15].
For the above reasons, I am not satisfied that it is appropriate for the Court to exercise its discretion to make the orders sought by Mr Erenshaw. I will therefore make an order dismissing the summons.
On the question of costs, I express a provisional view that costs should follow the event and that an order should be made for Mr Erenshaw to pay the Trustees’ costs of the application. This is on the basis that regardless of the merits of the redaction and what the true situation as to the court documents in the redacted plaintiff’s proceeding might be, I have concluded that given the timing of the application and the alternative options that have existed but were not pursued, an order for inspection ought not have been made in any event. However, I am conscious that due to the expedited nature of this application, there may be relevant considerations as to costs that have not been able to be raised by the parties to date.
I therefore propose to allow a period of 7 days for the parties to file any brief submissions on the question of costs (limited to two pages), after which the issue will be determined on the papers. In the event no submissions are made (or no agreed orders are otherwise notified to the Court), I will make the costs order identified above at that time.
SCHEDULE OF PARTIES
| S ECI 2022 04813 | |
| BETWEEN: | |
| MICHAEL ERENSHAW | Plaintiff |
| v | |
| THE STATE OF VICTORIA | First Defendant |
| TRUSTEES OF THE CHRISTIAN BROTHERS | Second Defendant |
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