Lenscak v Trustees of the Marist Brothers (No 2)
[2021] VSC 49
•15 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2019 01728
| JAMES LENSCAK | Plaintiff |
| v | |
| TRUSTEES OF THE MARIST BROTHERS & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 February 2021 |
DATE OF RULING: | 15 February 2021 |
CASE MAY BE CITED AS: | Lenscak v Trustees of the Marist Brothers (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 49 |
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PRACTICE AND PROCEDURE – Discovery – Scope of discovery – Documents that support another party’s case – Where defendants geographically confined the scope of documents discovered – Relevance of documents to allegations of historical child sexual abuse – Documents ordered to be discovered – Civil Procedure Act 2010 (Vic) s 26 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.01.1 – Di Cesare v Bird [2021] VSC 25 – JCB v Bishop Paul Bird for the Diocese of Ballarat (2019) 58 VR 426.
PRACTICE AND PROCEDURE – Discovery – Redaction – Whether redaction justified – Allegations of child sexual abuse – Names of other complainants redacted – Where confidentiality and relevance asserted – Redactions justified – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 29.11. – Octagon Inc v Hewitt No 2 [2011] VSC 373 – Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 602.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R C Gordon with Ms L Kirwan | Right Side Legal |
| For the Defendants | Mr J T Rush QC with Mr J Hooper | Colin Biggers & Paisley |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Ought the defendants discover documents in relation to their ‘Northern Province’?......... 1
Plaintiff’s submissions.................................................................................................................. 2
Defendants’ submissions............................................................................................................. 3
Analysis.......................................................................................................................................... 5
Should the defendants be ordered to produce unredacted documents?............................... 11
Plaintiff’s submissions................................................................................................................ 12
Defendants’ submissions........................................................................................................... 15
Analysis........................................................................................................................................ 17
Conclusion......................................................................................................................................... 20
HER HONOUR:
This ruling determines two disputes concerning discovery and inspection. The first dispute relates to the scope of discovery. The plaintiff alleges he was sexually abused in 1981. At the time, he was a student at St Paul’s College in Traralgon. The alleged abuser is Michael Benedict Tobin, known as Brother Aubrey. He is deceased. At the relevant times he was a teacher at St Paul’s and a Marist Brother. St Paul’s was then operated by the defendants’ Southern Province. The first issue is whether the defendants ought discover documents in relation to their Northern Province.
The second issue concerns redaction. The defendants have discovered documents concerning complaints by other complainants. The defendants have redacted the names of the other complainants, their family members and contact details. The second issue is whether the defendants are to produce those documents unredacted.
This is the second ruling in this proceeding. The first ruling concerned interrogatories and describes the proceeding.[1]
[1]Lenscak v Trustees of the Marist Brothers (No 1) [2020] VSC 766.
Summary
The defendants ought discover documents in relation to their Northern Province. Save for those concerning CD, the defendants ought not be ordered to produce documents with the names of other complainants unredacted. In other words, those names, the names of the other complainants’ family members, and personal contact details may remain redacted.
Ought the defendants discover documents in relation to their ‘Northern Province’?
The plaintiff seeks discovery of the following class of documents:
All notes, reports, minutes and records held by the Marist Brothers concerning allegations of sexual abuse made to the Marist Brothers related to any school they operated, managed or oversaw prior to 1981.[2]
[2]This class of documents is described in the plaintiff’s notice to produce dated 31 August 2020, see Plaintiff, Affidavit of Laird Macdonald, affirmed 11 November 2020, Exhibit ‘LM-3’ (‘Macdonald Affidavit’).
The defendants have confined discovery of this class of documents geographically, namely to their Southern Province. The question arises whether the class should be so confined or extend to the defendants’ Northern Province.
Plaintiff’s submissions
The onus is on the defendants to discover all documents that meet the requirements of Civil Procedure Act 2010 (‘CPA’) and rr 29.01 and 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The nominated defendant is an incorporated entity common to all Marist Brother provinces, including both the Northern and Southern Province.
There cannot be any doubt as to the relevance or purpose of prior complaints of abuse to an Order with a duty of care to students. Prior complaints are relevant to foreseeability and implementation of the duty of care.[3]
[3]Di Cesare v Bird [2021] VSC 25, [37]-[43]; JCB v Bishop Paul Bird for the Diocese of Ballarat (2019) 58 VR 426, 441 [54].
The defendants have records and could provide them without further delay. Brother Carroll’s statement in the Royal Commission, referred to previously [Ruling No 1 in this proceeding], is relied upon. Brother Carroll’s affidavit sworn on 26 November 2020 (‘Carroll affidavit’) deposes as to records. In paragraph 12, he deposes that there exists a database containing all allegations of abuse of which the Australian Province is aware and it is searchable. The plaintiff requests without further delay that someone ‘pushes the button’ on that database and prints out the details of the allegations known to the defendants.
There is an assumption there was a free flow of information between the defendants’ Provinces and that Provincials conferred or met regularly. There is nothing to preclude what was known in Sydney being known by the Melbourne Province. If the plaintiff is wrong about that, and issues were not dealt with on an Australia wide basis, it may be a possible reason to limit the request for discovery to complaints from the Southern Province. It is not the plaintiff’s onus to inform the defendants of their discovery obligations. The obligation is on the defendants to seek instructions to see whether there is any basis for the Provincial of one province being aware of sexual abuse in another province.
The plaintiff asked the defendants in interrogatory 6 whether, prior to 1981, the defendants had received or become aware of any allegation, suggestion or report that any Marist Brother in the Southern Province had sexually abused, sexually assaulted or engaged in sexual misconduct with any student at any school operated by the defendants or at St Paul’s. It was only in the supplementary answer, filed the day prior to hearing, that the defendants answered that in about 1976, the Southern Provincial at that time became aware of a Marist brother, Colin Goodall, being the subject of ‘unconfirmed reports that he has been involved with boys’. Brother Goodall was Superior of the Thebarton Community in South Australia and headmaster of the school there.
In reply to the defendants’ submissions, although interrogatory 6 was confined to the Southern Province, the request for further discovery is not. Brother Carroll’s statement to the Royal Commission was not confined to the Southern Province. The records exist and are held in one location in Sydney in a database that is readily searchable and producible, according to Brother Carroll’s evidence.
Brothers who were in the Marist Order were assigned to schools in either the Southern or Northern Province. In relation to Tobin, there is evidence he was working in Broken Hill and something [relevant] occurred there. Tobin also served in Bondi, Mittagong and Cobram. He was therefore clearly working in the Northern Province.
Defendants’ submissions
All the documents of the Southern Province relating to sexual abuse known to the defendants prior to 1981 are discovered. Paragraph 2 of the amended defence refers to the Southern Province. It is a fishing expedition to go beyond the Southern Province.
Interrogatory 6 was confined to the Southern Province. The Northern Province was run separately from the Southern Province, and the defendants have not considered the documents from the Northern Province. The digitised documents [but not the paper documents] could be easily searched. The defendants’ solicitor spent three days in Sydney going through thousands of archived documents.[4] There are mammoth amounts of records just in relation to St Paul’s College.
[4]Defendants, Affidavit of Alicia Taylor, Affirmed 3 February 2021, [3] (‘Taylor affidavit’).
The Southern Province schools were run entirely separately from schools in the Northern Province. The evidence of Brother Carroll is that the Melbourne Province was established in 1948 and was not amalgamated with Sydney until 2012. From 1957, Tobin was in Victoria.
The evidence of Brother Carroll is that there are different structures for the Northern and Southern Provinces. Later amalgamation does not relate to the differences. They are completely different and distinct in relation to their operations. The plaintiff speculates there is evidence flow between the Provinces. Whilst the onus is on the defendants to discover relevant documents, the plaintiff needs to establish the documents are relevant.
There may be a complaint of abuse about Brother Goodall in South Australia and the Southern Province extends to that area. The defendants’ solicitor deposed the following:
From my review, I have identified a document that potentially falls within the scope of this Notice, in relation to a Brother in South Australia. This document was found in a Provincial box of former provincial Cletus Read. However, I note the document does not specifically record an allegation of sexual abuse or sexual misconduct. It refers to the conduct of a single Marist Brother in a different State in 1976. In any event, it has been discovered by the defendants in the supplementary affidavit of documents at document 10. I reviewed the Provincial Council minutes from 1976, Cletus Read correspondence, and the Brother’s confidential file and did not see any further documents that are not provided in the Supplementary Affidavit of Documents dates [sic] 28 January 2021 that specify the nature of the reports about this Marist Brother.[5]
[5]Ibid [29].
Analysis
I find that discovery ought not be limited to the Southern Province. That is, the Northern Province records ought be discovered. Reasons follow.
Firstly, applying r 29.01.1 of the Rules, the documents may assist the plaintiff to prove his case or adversely affect the defendants’ case. It is unnecessary, and indeed would be inappropriate, to rule on whether or not there was a flow of information between the Southern and Northern Provinces. That may be an issue for trial, as discussed further below. Rule 29.01.1(3) outlines the scope of the discovery obligation and provides that:
Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given –
(a) documents on which the party relies;
(b) documents that adversely affect the party’s own case;
(c) documents that adversely affect another party’s case; and
(d) documents that support another party’s case.
Rule 29.01.1(5) of the Rules provides guidance on what constitutes a ‘reasonable search’:
For the purposes of paragraph (3), in making a reasonable search a party may take into account –
(a) the nature and complexity of the proceeding;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document;
(d) the significance of any document to be found; and
(e) any other relevant matter.
Addressing these factors, the proceeding is one of alleged institutional abuse. The documents evidencing abuse allegations by other complainants may be significant in respect of issues such as foreseeability and damages. In another proceeding concerning allegations of institutional abuse, Keogh J recently outlined how historical records of a priest’s abuse of children other than the plaintiff are relevant:
x The pleadings raise more generally the alleged duty to protect the plaintiff from sexual abuse by diocesan priests, the foreseeability of the risk of harm to the plaintiff from sexual abuse by Claffey [a priest] and, in relation to breach, issues of training, supervision, instruction, reporting, education and the systems which allowed Claffey to regularly have unsupervised access to children …
Documents in all categories may be relevant to the systems, procedures and laws which governed the operation of the diocese and regulated the activities of priests and their interaction with children. The plaintiff may be able to use documents in all categories to assist to prove breach by establishing that there were systemic deficiencies by the diocese in supervision, instruction, training, reporting, education or access by Claffey to children, which were a cause of the abuse.
Documents in categories 2 and 5 may assist in showing what precautions were available to the diocese to guard against the risk of priests sexually abusing and injuring children, and the likelihood that taking those steps would prevent abuse occurring. The number of incidents of abuse by Claffey before November 1984, and the harm suffered by victims, may be relevant to the seriousness of the risk of harm to children from him, and the probability of the risk eventuating.
…
The first defendant has not formally admitted that the plaintiff was abused as he alleges. While it may seem unlikely, given the admissions which have been made, that there will be significant dispute about whether the abuse occurred, it is unclear what position the first defendant will adopt at trial. It is possible the first defendant will leave the issue of abuse to be proved by the plaintiff even if he does run hard on the issue. Until the abuse is conceded the plaintiff is entitled to prepare his case to prove it. Documents in each category may allow the plaintiff to lead tendency evidence, and thereby assist in proving the abuse.
The plaintiff’s claims for aggravated and exemplary damages are in issue. If he can establish that the diocese knew of Claffey’s history of offending before November 1984, turned a blind eye to facts and circumstances which would have led to such knowledge, or acted in reckless disregard of the plaintiff’s welfare by allowing Claffey to have isolated access to him, the plaintiff may be entitled to an award of exemplary damages and, if he can show that the conduct of the diocese increased his suffering, aggravated damages. There is a reasonable possibility documents responding to category 1, and possibly category 2, will materially assist the plaintiff to prove his damages claim. It is less clear that documents in categories 4 and 5, which relate to abuse of other children after the plaintiff was abused, are relevant and would be of material assistance.[6]
[6]Di Cesare v Bird [2021] VSC 25, [38]–[43].
Although the ruling related to whether there was a legitimate forensic purpose for a subpoena, which is not the issue here, Keogh J’s reasoning concerning the relevance of the records to issues including foreseeability, vicarious liability and exemplary damages is relevant. Similarly, McDonald J’s ruling in JCB v Bishop Paul Bird for the Diocese of Ballarat (‘JCB v Bird’)[7] is applicable. It concerned a dispute about whether or not the plaintiff should be allowed to join defendants who allegedly had knowledge of the offending of other clergy. His Honour held, amongst other things:
First, evidence of widespread sexual abuse of minors within the Diocese during the period preceding the sexual abuse of the plaintiff by Ridsdale [a priest] may bear upon the defendants’ duty of care to have taken steps to prevent Ridsdale from sexually abusing the plaintiff. Secondly, evidence of widespread sexual abuse of minors prior to March/April 1982 may be relevant to the plaintiff’s claim for aggravated and/or exemplary damages. I reject the defendants’ contention that the plaintiff should be precluded from pleading the particulars of knowledge regarding the offending of other priests.[8]
[7](2019) 58 VR 426.
[8]Ibid 441 [54].
Here the number of documents is unknown. Given there is a digital database, the defendants ought be able to conduct the search with relative ease and convenience. Indeed, the defendants’ evidence is supportive of the first defendant having knowledge of abuse allegations across Australia and having digitised complaint records. Brother Carroll deposes to the records of all allegations of child abuse known to the current Australian Province having been digitised:
Most records of all allegations of child sexual abuse that are known to the current Australian Province, being allegations made against any Marist Brother or involving any school or institution managed or operated by the Marist Brothers (Allegations), have been digitised. By digitised I mean the scanning of hard copy records to make them electronic. Some records still exist as hard copies.
As many of the records of the Melbourne Province are historic documents, many are hand written or not easily readable by our computer software. The documents would need to be written manually as electronic text to make them word searchable.
The records which have been digitised are complaint files and personnel files of Brothers who have been the subject of an Allegation of which the current Australian Province is aware.
The PSO maintains a confidential database of the Allegations (Database). I believe the Database currently captures and contains details of all Allegations known to date. The Database is searchable by various terms and items, such as school, complainant, alleged perpetrator, date of offending, and the date the Allegation was made and received. This Database was created in 2013 during the Royal Commission and I believe that significant work was undertaken to review Allegation related files in order to create the Database.
…
When Allegations are received, relevant documents pertaining to the Allegation (including the complainant and relevant accused) are sourced (as applicable, and as the case may be) from various sources such as the records of the PSO, Archives, the school in question, and the relevant Catholic Education or Diocesan office if the school is currently a Diocesan school.
I refer to my Witness Statement to the Royal Commission dated 17 October 2016 regarding record keeping at paragraphs 26 - 28 in which I state:
The Brothers have engaged in a major record keeping project, which has now consolidated, centralised, ordered, and filed all of the Brothers documentation, much of which has been digitised.
The Province PSO Staff work in collaboration with the Province Archivist to source any historic material which might be required by the Province PSO, and the improvements in record keeping and accessibility make any documents needed readily available for the demands of complaint handling and legal processes.
I state ‘much of which has been digitised’ and this is to be considered to mean known relevant information regarding Allegations, and that the Australian Province is in the process of and continues to digitise information as information and Allegations become known. My statement was not intended to be interpreted that all records have been digitised or that all records are electronically searchable. As I state above, not all records are in the possession of the Australian Province and there are hundreds of thousands of pages held in the Archives that relate to the Melbourne Province.
…
The PSO currently employs lay PSO Assistants (part-time and full-time) who assist with searches and enquiries relevant to Allegations and who maintain the Database. Searches of the Archives and Database are conducted by the PSO Assistants whenever it is relevant to an Allegation. The Database is updated when new Allegations are received, and when new, updated information is received with respect to existing Allegations (for example, as a result of further historical information that is found in the Archives in relation to individuals).
Notice to Produce dated 31 August 2020 [contains class of documents in dispute here]
The First Defendant objected to this Notice because it is too wide. It requires the First Defendant to undertake searches relating to all historical records prior to 1981 held by the ‘Marist Brothers’ related to ‘any school’ they operated managed or oversaw.
This Notice to Produce is not limited to date or jurisdictions. In accordance with the usual practices of the PSO, a search can be conducted of the Database relating to specific allegations which pertain to certain dates or periods. It would not be feasible or practicable to search and review, or to arrange the search and review, of millions of documents held by each individual school, each individual Catholic Education or Diocesan office, and Archives.
The PSO has conducted a search of the Database for Allegations which relate to the Melbourne Province. No Allegations are recorded as having been received with respect to a Melbourne Province school or institution prior to or during 1981.[9]
[9]Defendants, Affidavit of Peter Carroll, Sworn 26 November 2020 [9]–[21], [28]–[29] (‘Carroll affidavit’).
The evidence by Brother Carroll and the defendants’ solicitor regarding the length of time taken to search documents relates to boxes (hard copies) of archived documents.
I am reinforced in the analysis above by the CPA, s 26(1) of which provides:
Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control—
(a)of which the person is aware; and
(b)which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.[10]
[10]See also the CPA s 54.
In my view, the class of documents in question falls within those referred to in s26(1)(b).
Secondly, the nominated entity is not the Southern Province of the Order. It is the Trustees of the Marist Brothers. It is common ground that this is the proper nominated entity although St Paul’s College was responsible for the operation and conduct of the school. A brief summary of the pleadings follow.
By paragraph 2 of the amended statement of claim, it is alleged that the first defendant is the nominated entity pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act2018 and is responsible for, and will meet any liability in this proceeding that may be established against, among others, the Order of the Marist Brothers of Australia (‘the Order’), the Provincial Superior of the Order, the Southern Province of the Order in Australia, the Provincial of the Southern Province, and the Provincial Council of the Southern Province.
By paragraph 2 of the amended defence it is admitted that the Marist Brothers and entities responsible for the operation and conduct of St Paul’s College in 1981 were the Southern Province of the Marist Brothers, the Provincial of the Southern Province, the Provincial Council of the Southern Province, and the principal of the school. It is admitted that the first defendant, Trustees of the Marist Brothers, is the proper nominated entity.
There is no evidence regarding the relationship between the Southern and Northern Provinces. Brother Carroll’s evidence, which the defendants rely upon, refers to the Sydney and Melbourne Provinces:
Fr Champagnat missioned the first Brothers to Western Oceania in around 1836. The Marist community has been present in Australian Society since approximately 1872 with the establishment of a Marist school in the Rocks, Sydney, in 1872. Marist Education was [sic] came to Victoria around 1893 with the creation of Assumption College, Kilmore.
The Melbourne Province was formally established as a Province around January 1948. It was amalgamated with the Sydney Province to create the Australian Province in 2012. The Melbourne Province loosely includes the Australian states of Victoria, Northern Territory, South Australia and Western Australia.
The Melbourne Province operated, managed or governed approximately 50 schools from 1948.[11]
[11]Carroll affidavit (n 9) [6]–[8].
The question as to the knowledge of the different defendants about any sexual abuse of children beyond the Southern Province, or the extent to which any such knowledge may be imputed to the first defendant, is one for trial.
Thirdly, it is common ground that Tobin worked in the Northern Province prior to working in the Southern Province.[12] This evidences that individual Marist Brothers moved around Australia. Tobin’s personnel records include information from different provinces. That is, they identify the different places around Australian in which he worked.
[12]Defendants, Affidavit of Documents, Sworn by Peter Carroll 20 January 2020, Item no. 15; Defendants, First Supplementary Affidavit of Documents, Sworn by Perter Carroll 4 September 2020, Item no. 11.
The defendants say that they have discovered all documents relating to complaints of abuse against Tobin.[13] These include records from beyond the Southern Province, namely in Broken Hill. Correctly, the defendants have identified these as relevant:
[13]Carroll affidavit (n 9) [23].
Br Tobin Documents
I am informed by the PSO and believe that relevant documents related to Br Tobin have been produced.
The entire personnel file of Br Tobin has been produced.
All complaint file documents regarding Br Tobin have been produced.
A targeted review of the Archives for Broken Hill where Br Tobin was appointed and all Provincial Council Minutes from 1948 - 1951 was conducted in relation to Br Tobin following receipt of the plaintiff’s interrogatories. All Provincial Council Minutes with reference to Br Tobin were discovered. Otherwise I believe no further relevant references have been found that had not previously been discovered.
A targeted review of the Archives for Sale where Br Tobin was appointed and all Provincial Council Minutes from 1966 - 1967 was conducted in relation to Br Tobin’s shock treatment. All Provincial Council Minutes with reference to Br Tobin were discovered. I believe no further references have been found to date regarding the shock treatment.[14]
[14]Ibid [48]–[52] (emphasis added).
It would be drawing an artificial distinction between the Southern and Northern Provinces to limit the search of other abuse allegations contained in the defendants’ digital records to the Southern Province.
Should the defendants be ordered to produce unredacted documents?
Documents numbered 11 to 15 in the defendants’ first supplementary affidavit of documents sworn on 4 September 2020 are described respectively as the complaint files of AB, CD, EF, GH and IJ.[15] The personal identity information of those complainants is redacted on the documents.
[15]See Macdonald Affidavit (n 2) Exhibit ‘LM-5’.
Plaintiff’s submissions
Parties are entitled to discovery of documents which would enable them to locate witnesses.[16] Strictly speaking, a party is required to produce for inspection the whole of the document discovered by it. A party may redact material if they regard it as both confidential and irrelevant.[17] Irrelevance alone is an insufficient basis for redaction. If a party seeks to redact on the basis of confidentiality, there must be a clear basis.[18] Here, it is not apparent what prejudice would be suffered from disclosure. There is a responsibility on the defendants to identify the prejudice.
[16]Board v Thomas Hedley & Co Ltd [1951] 2 All ER 431.
[17]Gunns Ltd v Marr [2008] VSC 464, [30].
[18]Octagon Inc v Hewitt No 2 [2011] VSC 373, [54].
In the affidavit of Brother Carroll of 26 November 2020, other than to say that the names have been redacted, there is no basis deposed as to a particular reason or entitlement to redact those names. More compellingly, or glaringly, there is nothing to suggest that prejudice might ensue by the disclosure of the names. As to any competing interests of justice, there is no basis identified for why any such prejudice ought take priority over the entitlement of the plaintiff to discover the names of potential witnesses to use in this case.
Brother Carroll does not address the precise circumstances of the particular complaint files. The complaints have some common features. Other than the case of IJ, most were made 20 or more years ago. There is no request for confidentiality made by any person who made the complaint. They are not seeking to pursue a process such as Towards Healing. In relation to particular complaints:
(i) AB - is deceased and there is a question as to what prejudice may arise to his family members. They initiated contact after he passed away by suicide. No request for confidentiality has been made and there is no indication that the defendants went back to relatives to say whether or not they wished to obtain confidentiality. The circumstances of the abuse would be a matter of significant importance for the plaintiff in this case. It is revealed that both AB and his brother were abused at the school.
(ii) CD – is deceased, having died in 2000. Only some of the instances of his name have been redacted. If it truly was the intention to protect his name, why disclose it? What is the purpose of showing some names but not others? His widow asked Brother Jolley to put her in contact with other complainants and that was facilitated by being put in contact with the plaintiff in this case. So there does not appear to be any concerns with the privacy of the deceased. Moreover, Brother Jolley disclosed details of the plaintiff’s abuse to CD’s widow in facilitating such contact.
(iii) EF - the abuse in 1981 is contemporaneous to the abuse of the plaintiff. In some places the name is redacted and in others it is revealed. There is no indication of the desire by the complainant for confidentiality. Indeed, he seemed to want Tobin publicly prosecuted for what he had done. Further documents received the day before the hearing included a memorandum between the Provincial and EF’s psychologist. The psychologist disclosed the details of a counselling session which he had with the complainant. That is apparently in breach of the medical privilege that attached to the discussions with the complainant. That is a further indication of the lack of concern with confidentiality that existed at the time the complainant approached the brothers. In answer to the Court’s question, the plaintiff is unaware of whether or not EF is alive. There is no evidence the defendants have made enquiries to assist the plaintiff in this regard.
(iv) GH - indicated that he wished to pursue legal action. There is no evidence of contact having being made and no request for confidentiality.
(v) IJ - this is a physical abuse complaint. The defendants say this is a redress application in correspondence. They seek to rely on s 37 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth). However, it is unclear whether or not this is an application or document accompanying an application. It is said in correspondence from the defendants’ solicitors that Redress Australia redacted it. However, it is unclear how the defendants obtained the document. It is unclear whether they inquired into the circumstances of the allegation. Did they investigate the claim? Did they ascertain the complainant’s name from any other source? It is inconceivable that they received the information and nothing was done, particularly as litigation was on foot regarding Tobin’s conduct, and in light of the indications made by several provincials that the Marist Brothers sought to learn from past mistakes. If there is any response or enquiry or investigation, it should be discovered.
Redaction is not sought out of concern for victims, several of whom are deceased, or their families, who have not sought confidentiality, and views have not been obtained in relation to who may be willing to assist other survivors. Rather, the defendants are concerned with protecting their own interests and seek to preclude the plaintiff from obtaining the names of persons who made similar complaints.
The defendants rely upon Stephenson v The Salesian Society Inc[19] (per Clayton JR, as Her Honour then was) to support the redaction of the names of other complainants. There are two significant problems with relying on that authority. Firstly, there, the relevant documents were subpoenaed from a third party, Towards Healing, who had been approached by the person concerned. The issue was whether they could be redacted. Here, there is an historical allegation without any expectation or request of confidentiality. Secondly, in a later ruling, Clayton JR made it clear that she was not setting down any binding precedent on redaction.[20]
[19]Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 602.
[20]Levy v Bishop Paul Bernard Bird [2020] VSC 615, [37].
The reasons and circumstances for seeking the unredacted documents are relevant. The plaintiff seeks to know what information the defendants have of other instances of abuse perpetrated by Tobin. The abuse is not admitted in the defence. The importance of the knowledge of prior or other abuse is established by two authorities.[21] The details of the actual abuse are not significantly set out in the complaint files other than some fairly general statements. The plaintiff is seeking to adduce particulars of the complaints in relation to establish tendency,[22] which is important in civil cases for claims of sexual abuse.
[21]Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 602 [39]; Di Cesare v Bird [2021] VSC 25, [37]-[43].
[22]Fletcher v Queen, transcript 10/03/06.
Defendants’ submissions
The entirety of the confidential complaint files against Tobin have been produced. The names of the complainants, members of their family, and personal contact information have been redacted to preserve the confidentiality of those persons. This is consistent with recent authority.[23] The substance of the complaints has not been redacted.
[23]Di Cesare v Bird per Keogh J.
The redactions made are limited to protecting the privacy of third parties not connected with this proceeding and which have no relevance to the issues in the proceeding. Those redactions are therefore appropriate.
The Court has recognised that documents containing the names of complainants of sexual abuse are deeply sensitive to persons not privy to the litigation and the public interest weighs in favour of preserving the confidentiality of these records.[24] There is authority to support the proposition that the identity of other complainants should not be disclosed.[25]
[24]Stephensen v Salesian per Clayton JR.
[25]Stephensen v The Salesian Society Inc & Ors; Easton v The Salesian Society Inc & Ors (No 2) [2018] VSC 630 (Ierodiaconou AsJ).
While it is true that the defendants have not contacted or made any requests to the other complainants as to whether or not they wish to maintain confidentiality, the nature of contact concerning allegations sexual abuse is of itself intimate. The idea that the defendants would contact complainants more than two decades after they have made allegations to see if they or a family member are prepared to talk is close to preposterous.
In respect of the complainant CD, the name was disclosed deliberately because of a request from his widow for contact with the plaintiff. In that sense, the identity having already been disclosed, it was entirely proper that it should not have been withheld.
In respect of the complainant EF, his identity was disclosed inadvertently. The plaintiff is unable to say whether he is still alive. However, the basis for the plaintiff’s submission is that he can make investigations to find out information as to whether EF may be a potential witness.
In respect of the complainant IJ, the defendant’s solicitor, Alicia Taylor, deposes in her affidavit sworn on 30 October 2020 that she is instructed that the document produced is a redress application document and that the redactions were made by the Commonwealth Redress Scheme.[26] No redactions were made to the document by the Marist Brothers and they do not hold an unredacted version.[27] Further, the defendants are not permitted to produce the Redress application in this proceeding: section 37 of the National Redress Scheme for Institutional Abuse Act.[28]
[26]Defendants, Affidavit of Alicia Taylor, Affirmed 30 October 2020, [10].
[27]Letter from defendants’ solicitors to Laird Macdonald dated 4 February 2021.
[28]Ibid.
In reply to the plaintiff’s submissions: the defence pleads that the defendants do not know and therefore cannot admit alleged sexual abuse of the plaintiff. Clearly, all that is required in relation to the proof of the abuse is the evidence of the plaintiff.
Analysis
The evidence of Brother Carroll is that the redaction is of ‘[p]ersonal information limited to names of complainants of child sexual abuse or their families’.[29]
[29]Carroll affidavit [46(d)].
Save for CD, the defendants should not be ordered to produce documents in which the names of the other complainants, their family members and contact details are unredacted.
The following principles are applicable.
Firstly, prima facie whole documents need be produced for inspection. Where there is redaction, the onus rests upon the party to establish an appropriate basis for it. Ultimately, ‘the Court will focus on ensuring the attainment of justice between the parties’.[30]
[30]Octagon Inc v Hewitt No 2 [2011] VSC 373, [32].
Secondly, protecting the identity of sexual assault complainants may be an appropriate basis for redaction of their personal identity information.
In Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc,[31] Clayton JR (as Her Honour then was) held:
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 [the insurer] 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.[32]
[31]Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 602.
[32]Ibid [54].
In Levey v Bishop Paul Bernard Bird,[33] Clayton JR (as her Honour then was) stated:
I do not accept that redaction of documents is an automatic requirement of the production of material. Indeed the authorities suggest the opposite – that documents should be produced without redaction and then arguments can be made to the Court.
My own decision in the matter of Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc has been cited in support of the proposition that redaction of identifying details of other complainants is necessary and is therefore a ‘cost of compliance’. However whether redaction is necessary or reasonable will depend on the circumstances of the individual case. The Court’s concern in that case was to balance the reasonable expectation of an individual that, in approaching an organisation such as Toward Healing, his or her identifying details will be kept confidential, against a plaintiff’s entitlement to documents that will assist in proving his or her case. In a case where, for example, a firm of solicitors acts for a number of victims of a particular perpetrator, and is aware of the identity of the victim and the circumstances of the abuse alleged, there would be little utility in either requiring or undertaking the automatic redaction of those names. The need for redaction is something that must be assessed on a case by case basis, and therefore, even where a large number of documents respond to the subpoena, will not automatically render production onerous or oppressive.[34]
[33][2020] VSC 615.
[34]Ibid [36]–[37] (citation omitted). See also Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc (No 2) [2018] VSC 630 [60]-[64] (Ierodiaconou AsJ where I referred to various legislation protecting the identify of sexual abuse complainants).
I reject the plaintiff’s submission that Board v Thomas Hedley & Co Ltd[35] is applicable and gives rise to a right to inspect unredacted documents to locate witnesses. Board v Thomas Hedley & Co Ltd refers to the ‘train of inquiry’ test for discovery, which is no longer the correct test following the advent of the CPA and is now ‘consigned to the dustbin’.[36] Moreover, it does not deal specifically with redaction.
[35][1951] 2 All ER 431 (‘Board v Thomas Hedley & Co Ltd’).
[36]Volunteer Fire Brigades Victoria Inc v Country Fire Authority [2016] VSC 573 [33]. His Honour there referring to the ‘Peruvian Guano’ train of inquiry test.
The personal identity information of the complainants other than CD ought remain redacted. Turning now to each complainant.
It is common ground that AB and CD are deceased. Moreover, that the documents concerning CD and EF are not wholly redacted and their names are evident.
(vi) AB – AB is deceased. The document ought remain redacted to protect the identities and contact details of AB’s family members. Additionally, as AB is deceased there is no utility in attempting to locate him as a witness.
(vii) CD – Given that the name of CD has been intentionally disclosed by the defendants as a result of communications with CD’s widow, and because she requested contact with the plaintiff, there is no reason to maintain the redactions on any of the documents which have been redacted. Of course, whether or not CD’s name is disclosed during trial is ultimately a matter for the trial judge.
(viii) EF – There is no evidence as to whether or not EF is alive. Documents recently released by the defendants disclose the name of his psychologist and a memorandum from the psychologist to the Provincial disclosing the counselling session the psychologist had with EF. Whether or not EF provided consent to that disclosure, or would consent, is unknown. Given that the disclosure was inadvertent, EF’s personal identity information ought remain redacted.
(ix)GH – personal identity information ought remain redacted.
(x) IJ – personal identity information ought remain redacted. I accept the evidence that this document was received as redacted by the Commonwealth Redress Scheme and that it is an application to that scheme.[37] The application for redress to the Scheme necessarily postdates its establishment and certainly postdates the allegations of abuse by the complainant here. The plaintiff seeks information about the outcome of the application for redress. However, the plaintiff has not identified how such information would be relevant to this proceeding.
[37]Taylor 30 October 2020 affidavit, [10].
I reject the plaintiff’s suggestion that there is an onus on the defendants to contact the other complainants to establish whether or not they consent to disclosure. Rather, the onus is on the defendants to establish an appropriate basis for the redaction.
Finally, the fact that the complaints were made to the defendants, which is the relevant issue here, is not in dispute. The complaints are in the defendants’ discovered documents.
I am satisfied that there is an appropriate basis for redaction, and that justice weighs in favour of redaction.
Conclusion
The defendants ought discover documents in relation to their Northern Province. As to the issue of redactions, save for the documents concerning CD, the defendants should not be ordered to produce documents with the names of other complainants unredacted.
SCHEDULE OF PARTIES
| S ECI 2019 01728 | |
| BETWEEN: | |
| JAMES LENSCAK | Plaintiff |
| - v - | |
| TRUSTEES OF THE MARIST BROTHERS | First Defendant |
| JOHN MCMAHON | Second Defendant |
| PETER CARROLL (AS THE ADMINISTRATOR AD LITEM OF THE ESTATE OF WALTER SMITH) | Third Defendant |
| - and - | |
| THE SCOUT ASSOCIATION OF AUSTRALIA VICTORIAN BRANCH | Third Party |
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