Levey v Bishop Paul Bernard Bird - [2020] VSC 615

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSC 615
Decision Date: 22 September 2020

CaseChat Overview and Summary

Levey v Bishop Paul Bernard Bird is a case involving the application of costs associated with subpoenas in a legal dispute. The matter was heard in the Supreme Court of Victoria. The primary issue in this case was the determination of the reasonable costs of compliance and the costs of an objection to a subpoena, particularly in relation to the costs of legal advice. The court was tasked with assessing the circumstances under which such costs are incurred and how they should be allocated between the parties.

The court considered the legal precedents set in Hera Project Pty Ltd v Bisognin (No 4) [2017] VSC 270, which provided a framework for determining reasonable costs in subpoena objections. The court also had to address the sensitive issue of the privacy of sexual abuse victims and complainants, referencing section 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). The court distinguished the current case from Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 602, where similar issues were considered but with different procedural contexts.

In its judgment, the court found that the costs of legal advice related to the subpoena objection were not to be included in the reasonable costs of compliance. The court ruled that the privacy concerns of the victims and the nature of the proceeding warranted a particular approach to cost allocation. The court ultimately decided that the costs associated with the subpoena objection, excluding the costs of legal advice, should be borne by the party that was ultimately unsuccessful in their objection. This decision balanced the need to protect the privacy of the victims with the necessity of ensuring fair cost allocation between the parties involved.

The final orders of the court directed that the respondent bear the reasonable costs of compliance, excluding the costs of legal advice, and that the applicant's costs of the objection were to be paid by the respondent. This ruling provided clarity on the allocation of costs in subpoena objections, particularly in cases involving sensitive personal information.

Orders