Jagoe v The Trustees of the Marist Brothers

[2022] VSC 563

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2019 04827

BETWEEN:

GARY JAGOE	Plaintiff
v
THE TRUSTEES OF THE MARIST BROTHERS	First Defendant
THE ROMAN CATHOLIC TRUSTS CORPORATION FOR THE DIOCESE OF SALE	Second Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF RULING:	29 August 2022 (ex tempore) (revised 15 September 2022)
CASE MAY BE CITED AS:	Jagoe v The Trustees of the Marist Brothers & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 563

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PRACTICE AND PROCEDURE — Application for further interrogatories — Definition of ‘protected information’ — National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) ss 37, 92 and 93.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J R C Gordon	Arnold Thomas & Becker Lawyers
For the First Defendant	C Morshead	Carroll & O’Dea Lawyers
No appearance for the Second Defendant

HIS HONOUR:

1. In this proceeding, the plaintiff seeks damages for injury and loss arising from his alleged sexual abuse by Brother Phillip Malcolm Stanley Hall (Hall) in 1964 and 1965 while a student at St Joseph’s Marist Brothers College in Warragul in the State of Victoria.

1. In the course of preparing the proceeding for hearing, the plaintiff issued interrogatories for the examination of the first defendant.  Paragraph 7 of the plaintiff’s interrogatories filed 12 July 2022 asked:

Were the Marist Brothers aware or informed after Hall’s death of, or by, any person who claimed to have been sexually abused by Hall, of any allegation or complaint of sexual abuse by Hall, and if so, by whom and when were the Marist Brothers so informed or aware, and when and where was the sexual abuse by Hall alleged to have occurred?

1. The first defendant filed answers to the plaintiff’s interrogatories on 4 August 2022 (original answers).  Peter Carroll, Provincial of the Marist Brothers (Carroll), swore the original answers to the plaintiff’s interrogatories.  Carroll objected to answering paragraph 7 of the plaintiff’s interrogatories on the basis that it was unclear, vague, too wide and oppressive.  Under cover of this objection, Carroll then proceeded to provide details of eight allegations of abuse made against Hall (including the plaintiff’s allegation), separate from any allegations notified to the first defendant under the National Redress Scheme for Institutional Child Sexual Abuse (National Redress Scheme).

1. On 26 August 2022, the first defendant filed further answers to the plaintiff’s interrogatories (further answers).  These were also sworn by Carroll.  By the further answers, Carroll amended his answer to paragraph 7 of the plaintiff’s interrogatories by changing the number of allegations of abuse from eight to five and striking through the details of three of the allegations provided in the original answers.

1. The first defendant said that its original answers inadvertently made reference to three allegations that were raised through the National Redress Scheme (Redress Scheme allegations).  The first defendant said its further answers removed references to the Redress Scheme allegations in order to comply with the provisions of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (Act).

1. The plaintiff complained that the first defendant was required by previous orders of the Court to provide discovery of digital records of all allegations of abuse of which it was aware against any Marist Brother and that this should have included the Redress Scheme allegations.  The plaintiff requested the Court make orders for further discovery to address this shortcoming.

1. The issue came before me for hearing on 29 August 2022. The central issue was whether the provisions of the Act prevented the first defendant from disclosing the Redress Scheme allegations. At the conclusion of the hearing, I provided ex tempore reasons for my decision that the provisions of the Act did not prevent the first defendant from disclosing the Redress Scheme allegations. I have revised my ex tempore reasons for publication.

1. The first defendant submitted that there were two main reasons why it should not be required to provide discovery in relation to the Redress Scheme allegations. First, the terms of s 37 of the Act meant that any documents the first defendant might discover are inadmissible in evidence in civil proceedings, including this proceeding. Secondly, the provisions of Part 4‑3 of the Act expressly provide that information relating to applications to the National Redress Scheme, including all supporting material, is ‘protected information’ and cannot be disclosed except under the specific circumstances identified in that Part.

1. In SZTAL v Minister for Immigration and Border Protection,[1] a plurality of the High Court of Australia said the following about statutory interpretation:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.  Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.  This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction.  Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(citations omitted)

[1](2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).

1. In opposition to the plaintiff’s application for an order for further discovery, the first defendant relied on an affidavit of Charles Jeremy Harrison (Harrison) sworn 26 August 2022. Harrison deposed that the Redress Scheme allegations were disclosed to the first defendant pursuant to the National Redress Scheme and that Carroll’s disclosure of these allegations in his original answers had been inadvertent. Harrison further deposed that any information and/or documents held by the first defendant in relation to the Redress Scheme allegations were obtained for the purposes of and/or in connection with the National Redress Scheme. Harrison’s affidavit exhibited various extracts from the Act, the Second Reading Speech for the Act and the Explanatory Memorandum to the Act.

1. It was common ground between the parties that the National Redress Scheme was established by the Act to implement the Commonwealth Government and Victorian State Government’s response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to redress.

1. The objects of the Act are relevantly set out in s 3 in the following terms:

3        Objects of this Act

(1)       The main objects of this Act are:

(a) to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and

(b) to provide justice for the survivors of that abuse.  

1. Section 37 of the Act deals with admissibility. It provides that certain documents are not admissible in evidence in civil proceedings in a court or tribunal. The inadmissible documents are a person’s application for redress; a document created solely for the purposes of accompanying a person’s application for redress; and a document created solely for the purposes of complying with a request for information made by the Operator under ss 24 or 25 of the Act in relation to a person’s application for redress. ‘Operator’ is defined in s 6 of the Act to mean the person who is the Secretary of the Department, in the person’s capacity as Operator of the National Redress Scheme. Section 24 of the Act sets out the power of the Operator to request information from an applicant for redress that may be relevant to determining the application. Section 25 is the corresponding provision containing the power of the Operator to request information from a participating institution that the Operator believes, on reasonable grounds, may be responsible for the abuse of the person.

1. The first defendant submitted that the Court should not order it to provide further discovery in relation to the Redress Scheme allegations because the only documents it held were obtained for the purposes of and/or in connection with the National Redress Scheme and that, by operation of s 37 of the Act, these documents would be inadmissible in this proceeding.

1. The plaintiff submitted that the admissibility of a document was not relevant to whether or not it should be discovered. The plaintiff said that the first defendant’s documents were not before the Court, and so the Court could not be certain the first defendant’s documents fell within the definition of inadmissible documents in s 37 in any event. The plaintiff submitted that arguments about admissibility of evidence including documents were a matter usually and best addressed at trial.

1. I accept the plaintiff’s submission that it is not for this Court to decide whether or not a particular document is admissible or inadmissible on a interlocutory application relating to discovery.  First, the documents in question are not before the Court.  Secondly, one could envisage that parties might raise arguments about whether or not a particular document falls within the definition of the documents which are said to be inadmissible in a proceeding, for example, based on whether a document is solely produced for the purposes of accompanying an affidavit.  In my view, arguments about admissibility are best left for another day, and indeed for the trial judge who can make an appropriate determination, having regard to the document including its purpose and provenance. 

1. I also accept the plaintiff’s submission that inadmissibility does not dictate whether a document should or should not be discovered by a party to civil litigation. The scope of general discovery is contained in r 29.01.1 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and includes, inter alia, documents in a party’s possession, custody or power that adversely affect the party’s own case, and documents that support another party’s case.   

1. Part 4‑3 of the Act is titled ‘Protecting information under the scheme’. This Part sets out when a person is authorised to obtain, record, disclose or use protected information. ‘Protected information’ is relevantly defined in s 92(2) of the Act as follows:

(2)       Protected information is:

(a)       information about a person or an institution that: 

(i)was provided to, or obtained by, an officer of the scheme for the purposes of the scheme; and

(ii)       is or was held in the records of the Department; or

(aa)     information about a person or an institution that:

(i) was provided to, or obtained by, an officer of the scheme for the purposes of the scheme; and

(ii) is or was held in the records of the Human Services Department (within the meaning of this Act as in force at any time); or

(b)information to the effect that there is no information about a person or an institution held in the records of a Department referred to in subparagraph (a)(ii) or (aa)(ii).

1. ‘Human Services Department’ is defined in s 6 of the Act to mean Services Australia. The capitalised word ‘Department’ is used at various points in the Act, but does not appear to have been similarly defined.

1. The explanatory memorandum for the Act notes that s 92, ‘sets out the purpose of Division 2 and defines protected information. A large amount of protected information will likely be acquired by the Operator through the operation of the Scheme, and the protection of that information and a person’s right to privacy is considered paramount.’ The explanatory memorandum does not provide guidance about the words, ‘is or was held in the records of the Department’ or ‘Human Services Department’.

1. Section 93 of the Act provides that a person may obtain, make a record of, disclose or use protected information if, inter alia, the obtaining, recording, disclosure or use of the information by the person is done for the purposes of the National Redress Scheme or with the express or implied consent of the person or institution to which the information relates.  Under this section, a person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person or institution.

1. Sections 94 to 98 of the Act set out additional circumstances in which the disclosure of protected information is authorised. Sections 99 to 101 of the Act then create offences related to the disclosure and unauthorised use of protected information.

1. The first defendant submitted that the Redress Scheme allegations documents it holds constitute information about a person or institution that was either provided to or obtained by an officer of the National Redress Scheme for the purposes of that scheme. The first defendant submitted that this meant the Redress Scheme allegations documents were ‘protected information’ as defined in s 92 of the Act. When asked about how the information in the documents fitted within the other aspects of the definition in s 92, ie is or was held in the records of the Department or the Human Services Department, counsel for the first defendant conceded that the first defendant had not given detailed consideration to this aspect of the definition. Counsel submitted that these departments administered the National Redress Scheme.

1. There were three issues with the first defendant’s submissions. First, the primary submission that the National Redress Scheme allegations documents were protected information – because they contain information that falls within ss 92(2)(a)(i) or 92(2)(aa)(i) – ignores the structure of both ss 92(2)(a) and 92(2)(aa), which requires that the information falls within both ss 92(2)(a)(i) and 92(2)(a)(ii), or in the case of s 92(2)(aa), within both ss 92(2)(aa)(i) and 92(2)(aa)(ii).

1. The second issue concerns the first defendant’s suggested interpretation of s 92 of the Act, and in particular how the Court should understand and apply the phrases ‘is or was held in the records of the Department’ and ‘is or was held in the records of the Human Services Department’. The first defendant’s submission was that because the Redress Scheme allegations documents were provided to or obtained by an officer of the National Redress Scheme, the information those documents contained could be deemed to be or have been held by the relevant Department because that Department administers the National Redress Scheme. It appears to me that this construction should not be accepted, because it effectively renders ss 92(2)(a)(ii) and 92(2)(aa)(ii) otiose. Accordingly, it was incumbent on the first defendant to establish that the documents met all aspects of one of the definitions of ‘protected information’ contained in s 92(2) of the Act.

1. Thirdly, there was simply no evidence before the Court to support the first defendant’s submission that either or both of the Department or the Human Services Department administers or administered the National Redress Scheme, or that the information in the Redress Scheme allegations documents is or was held in the records or one or other of those departments.  

1. For the reasons given above, I am not satisfied that the first defendant has established that the Redress Scheme allegations documents are ‘protected information’ within the meaning of that term in the Act.

1. There were two other issues raised by the parties that require brief comment.  The first concerned both parties’ legitimate concerns that the identities of the complainants in the Redress Scheme allegations documents remain confidential.  The plaintiff conceded that it would be appropriate for the first defendant to redact any discovered Redress Scheme allegations documents to ensure the complainants cannot be identified.  

1. The second issue arose during the first defendant’s oral submissions.  Counsel for the first defendant informed the Court that the first defendant did not consent for the purposes of authorisation, either expressly or impliedly, to the disclosure of what it said was protected information contained in the Redress Scheme allegations documents.  Counsel appeared to invite the Court to provide guidance on the factors an institution might consider in determining whether or not to provide consent.  This case is not a suitable vehicle to consider that issue and it would, in my view, be inappropriate for the Court to engage with counsel’s suggestion in this case.