GAC v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta

[2024] NSWSC 980

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

GAC v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 980

Hearing dates:

09 July 2024 and 08 August 2024

Date of orders:

09 August 2024

Decision date:

09 August 2024

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

See [10], [16] and [17]

Catchwords:

CIVIL PROCEDURE — subpoena to produce documents — where document produced in redacted form without leave — redactions made to prevent the identification and personal information of claimants and potential claimants of historical abuse — dispute regarding terms upon which access is to be granted — Plaintiff granted access on terms.

PROCEDURE — civil proceedings —application for limited suppression order to protect the identity of the Plaintiff granted — detraction from the principle of open justice minimal— suppression order made to prevent prejudice and protect the safety of the Plaintiff.

Legislation Cited:

Court Suppression and Non-publication Order Act 2010 (NSW), ss 7, 11, 12

Evidence Act 1995 (NSW) s 126B

Uniform Civil Procedure Rules 2005 (NSW) rr 33.4(1), 33.8

Cases Cited:

Storer v New South Wales [2023] NSWSC 1043

WJT v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 983.

Category:

Procedural rulings

Parties:

GAC (Plaintiff)
Trustees of the Marist Brothers (First Defendant)
Trustees of the Roman Catholic Church for the Diocese of Parramatta (Second Defendant)

Representation:

Counsel:
E. Anderson (Plaintiff)
N. Bentley (First and Second Defendant)

Solicitors:
Koffels Pty Ltd (Plaintiff)
Carroll & O’Dea Lawyers (First Defendant)
Makinson D’Apice (Second Defendant)

File Number(s):

2023/00185560

JUDGMENT

1. A number of applications in these proceedings were heard concurrently with corresponding applications before the Court in WJT v Trustees of the Marist Brothers and Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 983. The following assumes familiarity with the reasons set out in the WJT case.

2. In the present case, the Plaintiff alleges that he suffered physical and sexual abuse in 1993 when he was a student at Parramatta Marist Brothers High School. A staff member employed by the school is named in the Statement of Claim as the perpetrator. The alleged perpetrator is one of the three staff members named as perpetrators in the WJT case. Having regard to the defences filed by the Defendants, the same issues arise in the present case about the Defendants’ knowledge, actual or constructive, of a foreseeable risk posed by the alleged perpetrator and the role into which the Defendants placed the alleged perpetrator within the school.

3. On 21 December 2023 the Plaintiff caused the Court to issue a subpoena to each of the Defendants. Assuming familiarity with my judgement in the WJT case, no further details need to be set out here other than to say that the Defendants answered the subpoenas by producing documents with redactions which were to protect the identity and personal information of claimants and potential claimants of historical abuse. At the same time one of the Defendants produced the same documents without redactions in a packet marked “privileged”. As in the WJT case, a dispute arose in May 2024 about the terms upon which the Court ought grant access to the unredacted documents.

4. By the time the applications were heard before me on 9 July 2024, the dispute in the present case had been narrowed to the same six pages of counselling records which were the subject of the residual dispute in the WJT case. In the present case, the issues which fell for determination were a subset of the issues in the WJT case, namely:

1. whether the Defendants required leave nunc pro tunc to maintain the redactions to the documents when the subpoenas were originally answered;

2. whether a direction ought to be made under s 126B of the Evidence Act 1995 (NSW) to prevent access to the information in the counselling records which have been redacted; and

3. whether the Court ought grant access to the counselling records subject to the terms imposed by the Court in Storer v New South Wales [2023] NSWSC 1043.

5. Given the orders to be made in the present case are about access to the unredacted documents, there is no utility in the Court granting leave nunc pro tunc in respect of the redactions previously made. I will not therefore grant that leave, but the Defendants are at liberty to make further application should it become necessary.

6. So far as a direction under s 126B of the Evidence Act is concerned, there is no material difference between this case and the WJT case. As with the WJT case, it is highly desirable that the Plaintiff and his legal advisers have access to all documents produced in answer to the subpoenas without redactions, including the counselling records. In view of the terms upon which the Court will grant access to the documents, any harm from disclosures of the information in the documents to the Plaintiff will not outweigh the desirability of access. I therefore decline to make the direction under s 126B(1).

7. As for access, the documents to which the Plaintiff is to have access are the same documents to which the plaintiff was granted access in the WJT case. The solicitor acting for the plaintiff in the WJT case is also the solicitor acting for the Plaintiff in the present case. Essentially the same evidence was relied upon. For the reasons given in my judgement in the WJT case, I will make orders for the Plaintiff in the present case to have access to the documents, including the unredacted counselling records, such access to be granted on terms.

8. The orders to be made to dispose of the applications in these proceedings are intended to bring about the same result as in the WJT case. Again, each party ought immediately check references to the packet numbers in the orders pronounced in the following paragraph to ensure that they are correct. Each party has liberty to apply if the packet numbers are incorrect.

9. I make the following orders:

1. The Plaintiff’s Notice of Motion dated 27 May 2024 be dismissed.

2. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW)(UCPR)
   r 33.8, general access be given to subpoena packets:

1. S-12 produced by the First Defendant; and

2. S-13 produced by the Second Defendant.

3. Pursuant to UCPR 33.4(1) and 33.8 and the inherent jurisdiction of the Court, order that:

1. access to the documents produced in subpoena packets S-11 and S-14 be limited to the solicitors and counsel who are retained to act for each of the parties to the proceeding;

2. with respect to such access by solicitors and counsel, any inspection of the documents in subpoena packets S-11 and S-14 be limited to the parties, instructing solicitor and counsel; and

3. each party, solicitor and counsel will not use or disclose further the identifying details, being the names, addresses, telephone number or other confidential details of any person identified in the documents in subpoena packets S-11 and S-14 without leave of the Court first being granted.

4. Each party bear its own costs of the Plaintiff’s Notice of Motion dated 27 May 2024, the First Defendant’s Notice of Motion dated 1 July 2024, the Second Defendant’s Notice of Motion dated 28 June 2024 and the hearing on 9 July 2024.

10. The Court notes that Order 3 above is not intended to prevent solicitors and counsel from seeking instructions from their clients with respect to the content of the documents or, subject to Order 3, the use of the documents for the purposes of the proceedings only.

Addendum (9 August 2024) 

11. On 9 July 2024 two proceedings were listed before me to be heard together with respect to a number of motions.  Each proceeding was brought by a different Plaintiff for whom there was common representation.  The Defendants in both proceedings are the same.  The allegations made in each proceeding are the same in nature, although in each proceeding the particulars are peculiar to the Plaintiff in question.

12. In addition to the motion before the Court of which notice had previously been given, an application was made by each of the respective Plaintiffs for suppression and non-disclosure orders under the Court Suppression and Non-publication Order Act 2010 (NSW).  No notice of those applications was given, although a review of the Short Minutes of Order handed up by counsel for the Plaintiffs and the Affidavits read by him make it obvious that an application for suppression and non-publication orders were intended to be made by each of the Plaintiffs.

13. By judgment handed down in the other proceedings on 8 August 2024, amongst other things, I made suppression and non-publication orders in respect of the Plaintiff in those other proceedings.  By judgment to be handed down in these proceedings on 8 August 2024, I made orders to dispose of the other motions before the Court on 9 July 2024 but I did not make any suppression or non-publication orders.

14. The solicitor for the Plaintiffs has brought this matter to the attention of my chambers this morning.  I have reviewed the evidence relied upon by the Plaintiff in these proceedings in support of his application for suppression and non-publication orders, including the medical evidence.

15. There is no material distinction between the Plaintiff's case and application for suppression and non-publication orders and the position of the Plaintiff in the other proceedings. I do not, therefore, need to set out again the reasons why the orders are appropriate to be made in these proceedings as those reasons are set out in my judgment in the other proceedings, which have the medium neutral citation of [2024] NSWSC 983.

16. I make the following orders:

1. The judgment in these proceedings to be handed down on 8 August 2024 will be withdrawn.

2. The judgment will be published on 9 August 2024 in the same terms except that the name of the proceedings will be changed in accordance with the following orders and in addition to the orders already contemplated by that judgment.

17. In addition to the orders previously made at [9], I make the following orders:

1. See above at [9(1)].

2. See above at [9(2)].

3. See above at [9(3)]. 

4. See above at [9(4)].

5. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act and on the grounds referred to in subsections 8(1)(a) and 8(1)(c) the disclosure by publication or otherwise of any information as to the name and identity of the Plaintiff except as may be necessary for the proper conduct of these proceedings is prohibited. 

6. The Plaintiff in these proceedings be known as "GAC", be described in all pleadings and other documents filed or served in the proceedings as GAC and, except as may be necessary for the proper conduct of the proceedings, be only referred to as “GAC”.

7. The name of the proceedings be changed so that the proceedings be referred to as “GAC v Trustees of the Marist Brothers Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta”.

8. There be no publication of the name of the Plaintiff of any matter which would identify him.

9. Orders 5 to 8 above are to be apply throughout the Commonwealth of Australia pursuant to s 11 of the Court Suppression and Non-publication Orders Act.

10. Orders 5 to 9 above are to apply until further order of the Court pursuant to s 12 of the Court Suppression and Non-publication Orders Act.

Amendments

09 August 2024 - Decision unrestricted; suppression order made.

Decision last updated: 09 August 2024