Levey v Bishop Paul Bernard Bird
[2020] VSC 615
•22 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LISABILITYLIST
S ECI 2019 01837
| PAUL GEOFFREY LEVEY | Plaintiff |
| v | |
| BISHOP PAUL BERNARD BIRD | Defendant |
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JUDICIAL OFFICER: | Judicial Registrar Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2020 |
DATE OF RULING: | 22 September 2020 |
CASE MAY BE CITED AS: | Levey v Bishop Paul Bernard Bird |
MEDIUM NEUTRAL CITATION: | [2020] VSC 615 |
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PRACTICE AND PROCEDURE – Subpoena objection – Reasonable costs of compliance and costs of objection – Costs of legal advice – Hera Project Pty Ltd v Bisognin (No 4) [2017] VSC 270 cited – Costs of subpoena objection where proceeding has resolved – Privacy of sexual abuse victims and complainants – Section 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) cited; Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 602 distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr G Boas | Wood Fussell town agent for Porters Lawyers |
| For the Defendant | Mr C Jones, solicitor | Colin Biggers & Paisley |
| For Catholic Church Insurance Limited | Mr D Bongiorno | Wotton + Kearney |
| For the Office of Professional Standards, Victoria | Mr J Hooper | Corrs Chambers Westgarth |
JUDICIAL REGISTRAR:
Background
The plaintiff alleges that he was sexually abused between the ages of 12 and 14 by Gerard Ridsdale, whilst Ridsdale was a priest at Mortlake in the Catholic Diocese of Ballarat, and on two camps in White Cliffs NSW. In 1994, Ridsdale was convicted and sentenced to prison for crimes including the crimes committed against the plaintiff.
The plaintiff sues the defendant as the Proper Defendant pursuant to the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) and alleges that it was responsible for the exercise of care, supervision and authority over the children in the Ballarat Diocese. The plaintiff says that Ridsdale was an employee, servant or agent of the Diocese and alleges that the Diocese was both negligent and vicariously liable for the intentional torts committed by Ridsdale. The plaintiff claims damages including exemplary damages and aggravated damages.
Background to subpoena objection costs dispute
The plaintiff served a subpoena dated 21 April 2020 on the Office of Professional Standards, Victoria, known as ‘Towards Healing’ for production of the following documents:
1. All documents that refer to or relate to allegations of any sexual or physical abuse perpetrated by Gerard Francis Ridsdale (d.o.b. 20 May 1934) (Ridsdale) against Paul Geoffrey Levey (d.o.b. 26 March 1968);
2. All other documents that refer to or relate to allegations of any sexual or physical abuse perpetrated by Ridsdale;
3. All documents that refer to or relate to any investigation or prosecution, whether contemplated or actual, of Ridsdale; and
4. All documents that refer or relate to allegations or information about Ronald Austin Mulkearns or other priest or official of the Catholic Diocese of Ballarat covering up any allegations, complaints or information concerning sexual or physical abuse perpetrated by Ridsdale against any child.
The plaintiff served a subpoena dated 12 May 2020 on Catholic Church Insurance Limited (‘CCI’) for production of the following documents:
1. Every document relating to a complaint, allegation, warning, concern or investigation, including internal investigations, of sexual abuse committed or alleged to be committed by Gerard Francis Ridsdale (d.o.b. 20 May 1934) (Ridsdale) up to and including 1980;
2. Any file notes, letters, memoranda, report or other document relating to or recording any disciplinary and/or proposed disciplinary action or internal considerations against Ridsdale for sexual abuse or alleged sexual abuse committed or alleged to be committed by him up to and including 1980;
3. Every document relating to compensation, damages or costs paid in respect of any other victims of alleged sexual abuse of Ridsdale committed or alleged to be committed up to and including 1980;
4. Every document relating to a complaint, allegation, warning, concern or investigation, including internal investigations, of sexual abuse committed or alleged to be committed by Ridsdale from 1980 to the present;
5. Any file notes, letters, memoranda, report or other document relating to or recording any disciplinary and/or proposed disciplinary action or internal considerations against Ridsdale for sexual abuse or alleged sexual abuse committed or alleged to be committed by him from 1980 to the present; and
6. Every document relating to compensation, damages or costs paid in respect of any other victims of alleged sexual abuse of Ridsdale committed or alleged to be committed from 1980 to the present.
Both CCI and Toward Healing notified the Court that they objected to the subpoenas and sought a hearing date for those objections to be ventilated.
On 13 July 2020 the plaintiff wrote to the Court advising that the substantive proceeding had settled in principle.
CCI and Towards Healing sought their costs associated with responding to the subpoenas and the matter was listed for a hearing in relation to costs.
At the hearing on 14 July 2020 the plaintiff and defendant informed the Court that the matter had settled in principle but that the terms had not been agreed.
In my view, until formal orders were made dismissing the proceeding, or granting leave to file a notice of discontinuance, the proceeding remained on foot. The plaintiff did not seek to withdraw his subpoenas to CCI and Towards Healing or to consent to those subpoenas being set aside. Likewise CCI and Towards Healing maintained their objections to the subpoenas. If the terms of settlement were not able to be agreed and the matter proceeded, the subpoenas would be called upon and the objections would have to be dealt with. It was therefore not appropriate to determine the costs question until after final orders were made.
However, all parties were present at the hearing, and had incurred the costs involved in an attendance on the day. Given the indications from the plaintiff and defendant that the prospects were extremely high that the matter would settle and a consent minute seeking the dismissal of the proceeding would be provided in due course, I considered that it was in the interests of the timely and cost effective administration of justice to proceed with the costs hearing and to reserve any decision until final orders in the proceeding were made. The risk that this hearing would be rendered redundant in the event that the proceeding did not settle was low and any additional costs incurred by going ahead with the hearing in circumstances where counsel were already in attendance would be minimal. This course was agreed to by the parties present in Court.
A consent minute to dismiss the proceeding was not received until 7 September 2020. These reasons accompany the making of those orders.
Costs argument
CCI sought $28,253 and Towards Healing sought $37,000 respectively in professional fees and disbursements associated with responding and objecting to the subpoenas. I heard submissions from both objectors as to the reasonableness of their objections and the reasonableness of the amounts claimed, as well as the plaintiff’s submissions in opposition.
The defendant did not make any submissions as to the quantum of the costs sought, nor the appropriateness of the objections, but noted that, if the Court found that the subpoenas were objectionable, or, but for the settlement of the action, one or both of the subpoenas would have been set aside, any costs to which the subpoenaed parties were entitled should not be payable by the defendant.
CCI’s argument
Both CCI and Towards Healing sought their costs on the basis that they are entitled to the reasonable costs of responding to a subpoena, and submitted that responding to the subpoena includes reasonable resistance to the plaintiff’s invocation of a coercive power of the Court. Both CCI and Towards Healing argued that, had the subpoena objections been heard and determined, it is likely that their objections would have been upheld and they could have sought an order for costs from the plaintiff. However even if their objections had not been upheld, taking the objection was a reasonable course so as to enliven the discretion of the court to award costs.
The arguments were set out in written submissions supported by affidavit material.
CCI maintained that the subpoenas were too wide, too broad, onerous and irrelevant to any issue in the proceeding. They pointed to the admissions made by the defendant in its Defence, including an admission that it had breached its duty of care to the plaintiff and that Ridsdale had abused the plaintiff. It said that in light of the sentencing remarks in the criminal prosecution of Ridsdale, there can be little or no evidentiary value in any documents obtained from CCI in proving the propensity of Ridsdale to abuse children. Ample evidence of such propensity already existed and the abuse against the plaintiff was admitted.
CCI submitted that the main dispute in the case was going to be the assessment of damages and it was unlikely that any of the documents in its possession would be relevant to that question. It said that an argument of exemplary or aggravated damages was not open to the plaintiff. CCI also objected to the conduct of the plaintiff who refused to engage in discussions with it to narrow the scope of the subpoenas, or to set out the basis upon which the documents could be considered relevant so as to enable CCI to assess the reasonableness of the subpoena.
CCI said that there was other, better evidence available to the plaintiff to prove his case and that by casting the net so widely, CCI would have been required to review voluminous material, more than 6000 documents in 63 files.
CCI submitted that to comply with the subpoena would have cost it between $120,000 and $140,000 and this cost, in and of itself, is enough to found a basis for objection. If the cost of responding to a subpoena strays into such prohibitive financial territory, then a non-party should only be forced to incur such expense if those costs will be met. The coercive power of the court to compel compliance with a subpoena ought to be exercised cautiously where it imposes such a significant financial burden.
Towards Healing’s argument
Toward Healing initially informed the plaintiff that it would respond to the subpoena, but sought an assurance from the plaintiff that its costs of doing so would be met. It assessed its costs of compliance in the amount of $11,000 which it said was largely the administrative costs associated with locating, reviewing and redacting documents so as to remove identifying details of other complainants.
The plaintiff did not agree to meet those costs. Some negotiations ensued with the plaintiff offering a smaller sum, and Toward Healing reducing the amount sought to $6,000. Ultimately, agreement could not be reached and Toward Healing proceeded to lodge a formal objection and prepare for an objection hearing.
It objected on the basis that the subpoena was too wide and an impermissible fishing expedition, and also that it was oppressive as it required searches and redactions of an excessively large number of documents in the context of a small organization that employs only two people working 38 hours per week.
Plaintiff’s argument
The plaintiff objected to having to pay the costs sought for subpoenas which had ultimately not been called upon, and the costs of objecting to subpoenas where it was unknown whether the objections would have been successful. The plaintiff submitted that the Court could not make a determination, in the absence of hearing the subpoena objections, as to whether those objections would have succeeded or failed. It would not be in the interests of the overarching purposes under the Civil Procedure Act 2010 (Vic) (‘CPA’) to require such a hearing solely for the purposes of assessing costs.
Further, the plaintiff says that the subpoenas were entirely appropriate and reasonable in their scope. Whilst the defendant had made certain admissions, it is a matter for the plaintiff to determine how he prepares his case and what evidence he will call. He is entitled to avail himself of any means lawfully at his disposal, including subpoenaing documents where appropriate, to make out the aspects of his case which he pleads. He is required to prove all aspects of his case. In this case he pleads exemplary damages and aggravated damages. He said that, whilst the sentencing remarks in the criminal prosecution may assist the plaintiff in establishing the propensity of Ridsdale to abuse children, documents in the possession of CCI or Toward Healing may demonstrate aspects of the knowledge of the defendant that would assist in his exemplary damages claim. They may also go to the propensity of other members of the Diocese to ignore information about Ridsdale’s past history of abuse.
The defendant had made only limited admissions in regard to prior knowledge of Ridsdale’s abuse. It was, in the plaintiff’s submission, entirely appropriate for him to obtain whatever evidence might be available to establish any element of his claim against the defendant.
It was not for CCI or Toward Healing to determine the parameters of the plaintiff’s claim against the defendant, or the material he needed to establish that claim. Rather their role was to respond to the subpoena as issued. The plaintiff has never disputed that CCI and Toward Healing were entitled to their reasonable costs of compliance, the dispute arose in relation to what was reasonable. The sort of costs claimed for compliance by CCI and Toward Healing were, in the plaintiff’s submission, designed to act as a deterrent to plaintiffs in institutional liability cases from issuing subpoenas against those parties. A claim for such an exorbitant amount would need to be very carefully interrogated by the Court to ensure that it was not designed to have a chilling effect on plaintiffs’ appropriately obtaining documents in support of their cases.
In relation to the costs claimed by Towards Healing, the plaintiff noted that Towards Healing had only prepared for a full objections hearing after the costs of redacting documents could not be agreed, and that the dispute between the plaintiff and Towards Healing should only ever have been about the cost of compliance. The plaintiff noted what he described as the ‘disproportionate’ costs incurred by Toward Healing, which, on its own evidence was a small organisation employing just two people, but which had retained ‘top end of town’ lawyers, and had four representatives present in court for this costs argument.
Consideration
The starting position pursuant to r 42.11 of the Supreme Court (General Civil Procedure) Rules2015 is that the issuing party is required to pay the reasonable costs incurred in complying with a subpoena. In the event that no objection had been taken, CCI and Toward Healing would be entitled to their reasonable costs of compliance. Taking an objection cannot obviate the need for those reasonable costs of compliance to be met. The question is what is a reasonable cost of compliance and is the cost of objecting a cost that should be met by the issuer of the subpoena.
Compliance with a subpoena can encompass seeking legal advice about the terms of a subpoena Hera Project Pty Ltd v Bisognin (No 4)[1] and what falls within its scope and could foreseeably also encompass legal advice about whether or not an objection ought to be taken to the scope of the subpoena. This does not mean that any person or entity subpoenaed will automatically be entitled to be reimbursed for obtaining legal advice in relation to a subpoena. In most cases the scope of a subpoena will be abundantly clear, and seeking legal advice would be unnecessary and unreasonable.
[1][2017] VSC 270.
In this case, however, I accept that seeking legal advice was reasonable. For example the request for:
[a]ll documents that refer or relate to allegations or information about Ronald Austin Mulkearns or other priest or official of the Catholic Diocese of Ballarat covering up any allegations, complaints or information concerning sexual or physical abuse perpetrated by Ridsdale against any child…
invites an analysis of what is meant by ‘covering up’. It would not be unreasonable for a lay person to seek legal advice about whether a particular document could be said to ‘relate to allegations or information’ about ‘covering up of allegations, complaints or information’. Mr Iacovino, in his affidavit, deposes that Toward Healing has in its possession medical records of numerous persons which disclose significant details of alleged abuse that are not relevant to this proceeding but contain highly confidential information. Whilst these documents may fall within one of the categories of the subpoena, it would be entirely appropriate for Toward Healing to obtain legal advice about the appropriateness of producing such documents. There would also be an argument that the production of any such documents would require leave of the court pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
Costs to which CCI and Toward Healing are entitled
I am satisfied that it was reasonable to obtain legal advice as to the scope of the subpoenas and that that legal advice may reasonably have included advice as to whether an objection should be taken.
The reasonable costs that CCI and Toward Healing are entitled to in responding to the subpoenas are the costs of:
(a) obtaining a preliminary legal opinion as to the scope of the subpoena and the sort of documents that would fall within that scope;
(b) review by a lawyer of documents to assess a claim of privilege was available or an objection could be maintained; and
(c) provision of an opinion in relation to maintaining an objection.
Unless the subpoena was to be wholly set aside, these costs, which would initially be payable by the issuer of the subpoena, would ultimately be costs in the proceeding, payable by the unsuccessful party.
Whether CCI and Toward Healing are entitled to costs of preparing for an objection hearing depends on the likely success of such a hearing. If such a hearing was wholly unsuccessful, it would be difficult to find that they would be entitled to their costs, notwithstanding CCI’s submission that even an unsuccessful objection would be a reasonable objection to take.
On the basis of the submissions and the material before me, I am not satisfied that the subpoenas would have been set side. Given the claims made by the plaintiff, including a claim for exemplary and aggravated damages, and notwithstanding the admissions made, I am satisfied that at least some of the documents sought in the subpoenas would be relevant to the proceeding and would have to have been produced. I accept the plaintiff’s submissions that it is for him to prove his case and determine what information he needs to do that, provided that he is not engaged in a fishing expedition and the documents are relevant to the claim. I do not find that the subpoenas are a fishing expedition.
I am not satisfied that the subpoenas would have been so unduly onerous as to render them liable to be struck out. Both CCI and Toward Healing have been involved in claims arising from abuse for many years. It is clear from their affidavit material that they have maintained documents and files in relation to various perpetrators and complainants, and that accessing and identifying the documents which respond to the subpoenas could be readily done. 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[2] 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.
[2][2018] VSC 602.
However, I am satisfied that it is likely that some of the objections would have been upheld in relation to the broadness of the scope of the categories. When terms such as ‘any document relating to’ are used, it invites an application that the scope is too broad as it would potentially include a vast array of documents. Whilst there is an argument that it is not for the Court to reframe the terms of the subpoena when objection is taken, and that any objection that is upheld should result in the setting aside of the entire subpoena, I am mindful of the Court’s obligations pursuant to the CPA, both in terms of case management and to ensure the timely and cost effective disposition of the real issues in dispute. It seems to me that where the terms of a subpoena can be amended to remove the objectionable wording, that is a course open to the Court, rather than setting the subpoena aside and requiring the issue of a new subpoena, which will inevitably incur additional cost and delay.
I am therefore satisfied that the objections would have been partially successful but the plaintiff would have been entitled to production and inspection of some documents pursuant to the subpoenas. In the ordinary course, costs would follow the event and the successful party would be entitled to its costs. Where there has been partial success, an appropriate costs order might be that each party bear its own costs or that costs are costs in the proceeding. However, as CCI and Toward Healing are non-parties, and given my finding that they were likely to be successful on some of the objections raised, I consider that they are entitled to their costs of objecting, being the reasonable costs of preparing affidavit material and submissions for the objection hearing on a standard basis.
Given my finding that the plaintiff would have been successful in compelling production of documents on the subpoena, I find that the costs of CCI and Toward Healing in complying with and objecting to the subpoena are costs in the proceeding.
CCI has sought an award of $28,000 for its costs. Toward Healing seeks costs in the amount of $37,000. I understand that both those amounts include the costs of the hearing before me in relation to this costs argument. For the avoidance of doubt, I consider that CCI and Toward Healing are entitled to their reasonable costs of the cost hearing, but do not consider that reasonable costs would include three solicitors and counsel being present in Court on a costs application. I note that the costs Towards Healing seeks in objecting to the subpoena significantly exceed the costs it sought to respond to the subpoena. It seems perverse that an organisation which is prepared to comply with a subpoena, provided its costs are met, will spend more than six times that amount in objecting to the subpoena.
Nevertheless, its preparedness to make no objection to the subpoena if its costs were met does not preclude Toward Healing from objecting to the subpoena on every ground available to it.
Save that CCI and Toward Healing are entitled to their reasonable costs of compliance with the subpoena and objecting to the subpoenas as set out above, I am not satisfied that the amount claimed represents those reasonable costs. Those costs would need to be more fully interrogated as to their reasonableness and therefore the quantum of those costs is more appropriately determined on taxation by the costs court in default of agreement.
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