LG v Brian Brock as executor of the estate of the late Leo Clarke

[2016] NSWSC 323

Supreme Court

New South Wales

Medium Neutral Citation:

LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323

Hearing dates:

29 February 2016, 1 March 2016, 10 – 11 March 2016

Date of orders:

11 March 2016

Decision date:

11 March 2016

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1. In respect of the subpoenas served on the second defendant and the Professional Standards Office, NSW, filed on 25 June 2015 (as amended), the plaintiff and her legal advisers may have access to all documents produced in response to those subpoenas in an un-redacted form.

 

2. Upon the grounds that suppression and non-publication of the name and identity of various complainants of sexual abuse appearing in documents produced in the subpoenas referred to in Order 1 are necessary in the public interest because of the personal sensitivity of the subject matter of their complaints and the potential for disclosure or publication of their name or identity to cause them undue distress and embarrassment - it is ordered pursuant to s7 of the Court Suppression and Non-publication Act 2010 (NSW) that:

 

(a) neither the full name of the complainants nor any other particulars which might enable them to be identified is or are to be disclosed to any person other than the parties to the proceedings;

 

(b) the complainants are to be referred to in all documents filed in Court or records of the proceedings only by pseudonyms to be agreed by the parties and in due course notified to the Court; and
(c) the publication of the complainants’ full name and/or of any other particulars which might enable them to be identified is prohibited.

 

3. Costs of and incidental to the second defendant’s Notice of Motion filed on 7 March 2016 be the plaintiff’s costs in the cause.

 4. The costs of all parties affected of the notice of motion filed 7 March 2016 and the amended notice of motion filed 9 March 2016 on behalf of Mr Salmon be borne by the parties respectively.

Catchwords:

PRACTICE AND PROCEDURE – civil – subpoenas – documents produced to court in redacted form – unredacted copies required – protection of confidential information to be regulated by order for access – suppression and non-publication orders sufficient to protect confidentiality – Uniform Civil Procedure Rules, r 33.8 – Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 33.4, 33.8

Cases Cited:

Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
Director General Department of Community Services v D [2006] NSWSC 827; (2007) 66 NSWLR 582
Gunns Ltd v Marr [2008] VSC 464
Harris Scarfe Ltd (Receivers & Managers Appointed) (in Liq) v Ernst & Young (No 10) [2006] SASC 325, (2006) 204 FLR 165
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
NRMA v Whitlam [2007] NSWCCA 81
R v Saleam [1999] NSWCCA 86
Telstra Corporation v Australis Media Holdings, (Supreme Court (NSW) McLelland J, 10 February 1997, unrep)

Category:

Principal judgment

Parties:

LG (Plaintiff/Respondent)
Brian Brock as executor for the estate of the late Leo Clarke (1st Defendant)
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (2nd Defendant/Applicant on motion filed 7 March 2016)
Michael Salmon, Director of the Professional Standards Office NSW & ACT (Applicant on motion filed 9 March 2016)

Representation:

Counsel:
Mr A J Bartley SC (Plaintiff/Respondent)
Mr R Gambi (Applicant on motion filed 7 March 2016)
Mr D Robertson (Applicant on amended motion filed 9 March 2016)

File Number(s):

2014/132846

Publication restriction:

1. Upon the ground that suppression and non-publication of the plaintiff’s name and identity are necessary in the public interest because of the personal sensitivity of the subject matter of her claim and the potential for disclosure or publication of her name or identity to cause her undue distress and embarrassment – it is ordered pursuant to s 8(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that (a) neither the full name of the plaintiff nor any other particulars which might enable her to be identified is or are to be disclosed to any person other than the parties to the proceedings, any witness who is or may be required to give evidence in the proceedings (including lay and expert witnesses) and any professional person representing or engaged by either of the parties for any purpose in connection with the proceedings, except by leave of the Court; (b) the plaintiff is to be referred to only by the initials “LG” on all documents filed in the Court and on all records of proceedings; (c) the publication of the plaintiff’s full name and of any other particulars which might enable her to be identified is prohibited and (d) any publication of information concerning the proceedings is to refer to the plaintiff only by the initials “LG”.

Judgment

1. The plaintiff LG alleges that between 1974 and 1984, when she was aged between about 5 years and about 15 years, she was sexually abused by Denis McAlinden, a priest of the Roman Catholic Church for the Diocese of Newcastle-Maitland. She alleges that as a result she has suffered significant lasting psychiatric harm.

2. The bishop of the Diocese at the time of the alleged abuse, the period from 1974 to 1984, was Leo Clarke. The plaintiff has brought this action against the estate of Leo Clarke as first defendant and the trustees of the Diocese as second defendant for damages for breach of duties which she alleges they owed to her to exercise reasonable care in the supervision of McAlinden to protect her against harm of the kind she has suffered.

3. These reasons are concerned with applications on notices of motion by the second defendant (hereafter referred to as “the Diocese”) and by Mr Michael Salmon (who is not a party to the proceedings) concerning access to documents which they respectively have been required to produce under subpoena.

Subpoena to the Diocese

4. On 20 June 2015 LG caused to be issued to the second defendant a subpoena seeking production of documents of the following descriptions, so far as relevant for present purposes:

“1. All documents recording a complaint, warning, concern or investigation of child sexual assault committed or alleged to be committed by Denis McAlinden on or before 31 December 1984.

2. All documents recording any disciplinary and/or proposed disciplinary action against Denis McAlinden for child sexual assault committed or alleged to be committed by him on or before 31 December 1984.”

5. In response the second defendant produced to the Court in August 2015 approximately ninety documents which fell within the above descriptions in the subpoena schedule. One additional document was produced in Court on 11 March 2016. An order was made when documents were originally produced that they might be inspected by the plaintiff and they were.

6. As produced by the second defendant these documents were significantly redacted. The portions obscured are said to contain information which was imparted to the Diocese in circumstances of confidence and which is not relevant to the issues in the case. Predominantly the redacted information consisted of names and identifying particulars of women other than the plaintiff who have complained over the years that they were abused as children by McAlinden.

7. In correspondence the plaintiff pressed for unredacted copies to be produced to the Court in answer to the subpoena and for access to them. The second defendant produced to the Court unredacted copies on 6 March 2016. By notice of motion filed 7 March 2016 it seeks orders restricting disclosure of the names and other identifying particulars of the complainants which appear on many of the documents. The second defendant refers to these other complainants as "historical victims of child sexual assault". The second defendant seeks to have these restricted access orders made either pursuant to the Courts Suppression and Non-Publication Orders Act 2010 (NSW) or in exercise of the Court's inherent power. It asks that access to the names and identifying particulars of the historical victims should be restricted to the plaintiff's legal representatives except by the leave of the Court. The notice of motion does not spell out what further dissemination might be permitted by further order or in what circumstances.

Subpoena to the Church’s Professional Standards Office

8. A second subpoena was issued by the plaintiff in late June 2015 to Mr Salmon in his capacity as Executive Officer of the National Committee for Professional Standards of the Church. He holds documents, received or generated by the Professional Standards Office NSW & ACT, which fall within paragraphs 2 and 4 only of the schedule to that subpoena. Those paragraphs are as follows:

“2. All letters, file notes, memoranda, case notes, emails and statements of complaints or other documents relating to or recording a complaint, warning, concern or investigation of childhood sexual assault committed or alleged to be committed by Denis McAlinden on or before 31 December 1984.

4. All file notes, emails, memoranda, letters, correspondence, reports and statements or other documents relating to allegations of childhood sexual abuse of the plaintiff by Denis McAlinden.”

9. As with the second defendant, Mr Salmon in August 2015 produced to the Court redacted documents. The redacted content was of the same nature as that which had been blanked out in the second defendant's documents. Again the plaintiff has been granted access to the documents in this partly obscured form but has pressed for production of full copies and rights of access thereto. Mr Salmon produced full copies to the Court on 6 March 2016, followed by the filing of a notice of motion on 7 March 2016 and an amended notice of motion on 9 March 2016.

10. The amended notice of motion seeks orders similar to those claimed by the second defendant for its documents, plus an order pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that Mr Salmon be permitted to redact the names of complainants in the documents produced. He argues that these names are irrelevant to the proceedings between LG and the two defendants and have been recorded in the produced documents in circumstances of confidence.

Documents of complaint to the Professional Standards Office

11. For the purposes of determining the notices of motion the most important category of documents produced under the subpoenas are written complaints made to the Professional Standards Office NSW & ACT, which is an office established within the Church. A number of these complaints have been produced by the second defendant and more by Mr Salmon as an executive of the Professional Standards Office. In the case of the latter, the complaints are accompanied by correspondence and other documents which comprise a file on each complainant, compiled in the course of the Office handling the complaints.

12. I will consider the question of access by the plaintiff to the unredacted copies of documents in this category first. For brevity I will refer to documents in this class simply as "complaints", comprehending by that term, where relevant, the entire complaint files produced by Mr Salmon from the Professional Standards Office.

13. The complaints are dated between the early 1990s and about 2013 but relate to sexual abuse alleged to have taken place as early as 1953. Since December 1996 the Professional Standards Office has implemented a program known as "Towards Healing". This is described in a printed protocol of that name which has been revised from time to time. From the date of its first promulgation it has prescribed principles and procedures to be followed by the Roman Catholic Church in Australia in responding to complaints of sexual abuse made against its personnel. The Towards Healing protocol has been widely circulated and published and it is likely that complainants who have provided information to the Professional Standards Office have done so on the basis of its terms. A number of the documents caught by the subpoenas are printed forms issued by the Professional Standards Office which have been completed by complainants, explicitly stating that they are lodged under the protocol.

14. The Towards Healing document, in the various forms it has taken by way of revision since December 2000, provides that where a complaint is received and dealt with in circumstances such as those which applied to all complaints concerning McAlinden, an assessment should be made by two assessors appointed under the protocol: clauses 39 and 40. In such cases all records associated with the assessment are required to be treated by the Church as confidential: clause 40.13.

15. The complaint forms issued by the Professional Standards Office pursuant to the protocol and completed and returned to the Office include a printed "Privacy Statement". By signing this the complainants have authorised the Office to provide the information given by them to other persons for the purposes of assessment but they have stipulated that each complainant would "expect the NSW/ACT PSO will take the necessary steps to generally protect my privacy and maintain confidentiality”.

16. I find that the names of the complainants and their identifying particulars as given in the complaint documents lodged with the Professional Standards Office under this protocol were communicated in circumstances of confidence.

Redaction of documents produced under subpoena

17. Rule 33.8 of the UCPR provides, so far as relevant:

“The Court may give directions in relation to the...inspection [and] copying...of any document...that has been produced in response to a subpoena.”

18. The second defendant and Mr Salmon have cited authorities for the proposition that under a discovery order a party may produce for inspection documents in which there have been blanked out portions that are both irrelevant to the proceedings and which would tend to infringe interests of confidentiality for no legitimate purpose: Telstra Corporation v Australis Media Holdings, (Supreme Court (NSW) McLelland J, 10 February 1997, unrep); Harris Scarfe Ltd (Receivers & Managers Appointed) (in Liq) v Ernst & Young (No 10) [2006] SASC 325, (2006) 204 FLR 165 at [22] to [24]; Gunns Ltd v Marr [2008] VSC 464 at [30] to [37].

19. It was submitted that by analogy a recipient of a subpoena may produce to the Court documents which have been redacted on the same basis. I do not accept that that is so. Production to the Court under subpoena is quite different from production of discoverable documents to the opposing party for inspection. Before a party who has issued a subpoena may see the documents produced in response to it, an order must be made under r 33.8. It is at that point that limited inspection by way of redaction may be ordered, or not. A person or entity answering a subpoena will often not be a party to the proceedings and it would be a very unsatisfactory rule that such a third party should be at liberty to form views about what may or may not be relevant to the issues in the case and about the extent to which redactions might appropriately be made before producing documents to the Court.

20. The argument of the second defendant and of Mr Salmon proceeds to the proposition that, they having now produced to the Court unredacted copies of the documents, the Court should order redaction before allowing inspection, upon the same principles as self-redaction by a party giving discovery might be carried out.

21. I accept that it would be an appropriate exercise of the discretion reposed in the Court under r 33.8 that the plaintiff's access to the produced documents should be confined in such a way as to exclude passages which are irrelevant to the issues in the case and of which inspection by the opposing party would infringe interests of confidentiality of third parties for no legitimate purpose. In other words, the relevance and importance of the documents for the proceedings and the existence of any third party’s interest in maintaining confidentiality with respect to them are considerations properly to be taken into account by the Court when deciding whether to allow access.

22. It has been said that if a document, or part, would be rejected upon tender pursuant to s 126B Evidence Act 1995 (NSW) because it contains a "protected confidence" or "protected identity information" (as those terms are defined in s 126A) then that would be a reason for the Court refusing access under r 33.8: Director General Department of Community Services v D [2006] NSWSC 827, (2007) 66 NSWLR 582 at [17]; NRMA v Whitlam [2007] NSWCCA 81 at [122]. However, I do not consider that s 126B provides any additional support for my view that, on the present facts, the discretion under r 33.8 may be exercised with regard to protecting material which is both confidential and not relevant to the issues in the case. That is because the relationship under which the complainants supplied information to the second defendant and to the Professional Standards Office confidentially was not, in my view, one in which the recipients of the information were "acting in a professional capacity" – as is required for s 126A to be engaged.

Relevance of particulars of other complainants and complaints

23. Accepting that in principle the discretion under r 33.8 may be exercised to prevent gratuitous incursions upon confidentiality, nevertheless I do not consider that the names and identifying particulars of the complainants in the subject documents are irrelevant to the issues in this case. It is important to the plaintiff's case to try to show that the late Bishop Leo Clarke and the Diocese breached alleged duties of care to protect infant parishioners against a man whom the plaintiffs allege was a rampant paedophile. To show lack of reasonable care in this respect, the plaintiff must attempt to prove either that Leo Clarke and other senior officials of the Diocese actually knew of McAlinden's persistent and widespread child-molesting or that they ought to have known. To that end the plaintiff seeks to gather and in due course to adduce, first, evidence that Leo Clarke and diocesan officials received directly from parents and others complaints about McAlinden sexually assaulting very young girls. Secondly, the plaintiff seeks to marshall evidence of the detailed circumstances in which McAlinden perpetrated his offending from which it might be inferred, the plaintiff will allege, that reasonably diligent diocesan officials ought to have learned what he was doing.

24. For these purposes of proof, it is far from irrelevant for the plaintiff to obtain the names of the numerous women who have complained to the Church about McAlinden, together with the details of their complaints. Although in most cases these other complaints were only made after the period of alleged molestation of the plaintiff (that is, post-1984) the conduct complained of occurred earlier. The circumstances and the frequency of McAlinden's wrongdoing against other young girls may well support an inference that the defendants ought to have known of this from a time before the plaintiff suffered McAlinden’s attentions.

25. If the plaintiff calls any of these other complainants as witnesses they may be able to give evidence of complaints having been made to the second defendant, for example by parents, teachers or others, at dates much earlier than their own complaints to the Professional Standards Office. They may be able to give evidence of such complaints having been made before or at the time of the alleged sexual assaults by McAlinden on the plaintiff herself.

26. Although no application was made by either the second defendant or Mr Salmon to set aside the subpoenas addressed to them respectively, both argued an absence of legitimate forensic purpose as a basis upon which the plaintiff should be denied access to the produced documents in unredacted form. Cases such as Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667, R v Saleam [1999] NSWCCA 86 and ICAP (Australia) Pty Ltd v BGC Partners Australia Pty Ltd [2009] NSWCA 307 were cited. In my view those cases have no bearing on the present matter, given that there is no application to set aside the subpoenas. Considerations material to the exercise of the Court's discretion to allow inspection under r 33.8 in the current context are the relevance to issues in the case of the contested parts of the produced documents and the nature of the third parties' interests of confidentiality in those parts. I have identified the relevance and taken into account the circumstances of confidence. The anterior question of legitimate forensic purpose of the subpoenas simply does not arise on these notices of motion.

Broad view of relevance for purposes of permitting inspection

27. I approach the question of relevance upon the basis that the disputed portions of the documents may be relevant to the issues I have identified indirectly or as an element or component which, together with other evidence, will or may go towards proof of a fact material to the plaintiff's causes of action. I do not dismiss any of the disputed portions of the documents as irrelevant upon a narrow view that the individual produced document may not itself be likely to be tendered, or to be admissible if it were. I reject the submissions of the second defendant and of Mr Salmon that certain complainant names and particulars are irrelevant simply because the unredacted substance of their complaint narratives, which the plaintiff has already had the opportunity to inspect, may not indicate that they or anyone on their behalf brought McAlinden's misconduct against them to the attention of either defendant at any time prior to the alleged assaults upon the plaintiff.

28. A party is entitled to see documents produced under subpoena which may support some facts relevant to his or her case such as, in the present case, the fact that other victims suffered at the hands of McAlinden prior to the assaults of which the plaintiff claims. A plaintiff is not to be denied access to documents just because they do not alone prove the whole of her case upon the point to which they relate.

29. The complainants, whose names the plaintiff will obtain upon inspection of the documents which I will order be released to the plaintiff, may well have additional evidence to give which would make what they have so far told the Professional Standards Office admissible and cogent in these proceedings.

The desire of other complainants for confidentiality

30. I have taken into account the evidence of Ms O'Hearn, a social worker who is employed by the Diocese in a coordinating role with respect to complaints of sexual abuse. She has contacted a number of the complainants whose names the Diocese wishes to redact and to withhold. Five of those whom she contacted told her that they did not want their names or details "to be made known to the Court or the legal representatives of the plaintiff".

31. I granted leave to Mr John Ellis, solicitor, to appear on the hearing of the notices of motion. He acts for some of the women whose complaints are produced by the Professional Standards Office. I have read an affidavit of Mr Ellis which I gave him leave to file in court on the hearing. In this he deposes that eight of his complainant clients do not want their names and details "revealed".

32. My decision to allow the plaintiff full access to the subpoenaed documents takes into account that although the confidentiality of complainants with respect to their identities will be lost vis-a-vis the plaintiff and her legal representatives, it is not necessary that their identities need be disclosed or published any further for the purpose of these proceedings. Contemporaneously with ordering that the plaintiffs have full access as they seek, I will make orders pursuant to the Court Suppression and Non-publication Orders Act to prevent publication of their identities through the course of the proceedings. These orders will include provision for the complainants whose names appear on the subpoenaed documents to be referred to in the course of the case and in any publication regarding it by acronyms or pseudonyms.

Other classes of documents produced under the subpoenas

33. Apart from the complaints which I have discussed to this point, the other documents caught by the subpoena issued to the second defendant and to which the plaintiff seeks access are considered in the following paragraphs. I identify them by reference to tabs in Exhibit A, as marked on the hearing of the notices of motion, which is a folder containing copies of all the documents produced by the second defendant.

34. First, there are items of internal correspondence and minutes of meetings between officials of the Roman Catholic Church, in some of which the names or other identifying details of complainants are written. For example there are letters by which one Church official informed another of a complaint concerning McAlinden. These communications do not involve any confidentiality which the named complainants could invoke. So far as the officials may have intended to be communicating with each other confidentially, that intention must give way to the need for the plaintiff to have such documents in order fairly to be able to develop and substantiate her case. Examples of documents in this category are in Exhibit A at tabs 2, 9, 11, 26, 30, 56, 63, 79, 83 and 84.

35. Secondly, there are copies of statements made to police by witnesses to McAlinden's sexual assaults on young girls and in some cases by the victims themselves. Where these give the names of victims there is no confidentiality because of the nature of the documents, being statements to investigating officers. There is a high degree of relevance in the names of the complainants and witnesses and in the dates and details of the events, for the reasons I have already given. Examples are at tabs 4, 25, 68, 72, 73 and 74.

36. Thirdly, the produced documents include correspondence from police to Church officials and police records of complaints under investigation, naming complainants and witnesses relevant to events surrounding sexual assaults complained of by women other than the plaintiff. In some cases these documents concern complaints made during the minority of the relevant complainant. There is no confidence in these communications and the names and details as set out are relevant to the case. Examples are at tabs 5, 6, 67, 75, 78, 80 and 85.

37. Fourthly, there is correspondence between the Church and third parties concerning complaints against McAlinden, including correspondence with solicitors. The relevance of the parts which the second defendant would seek to restrict from inspection, being names and particulars of complainants, is of such significance in the respects referred to earlier in these reasons that full inspection must be allowed for the purpose of enabling the plaintiff to litigate her case. Any confidentiality intended by the parties to the correspondence must give way. Examples are at tabs 12, 13, 17, 76, 77 and 86.

38. Fifthly, there are statutory declarations, victim impact statements and other records of complaints. These are in the same position as the complaints made under the Toward Healing protocol, except that the evidence does not disclose the circumstances in which the documents to which I now refer were received by the Diocese. Assuming that they were supplied under terms of confidentiality, nevertheless the plaintiff must be permitted full access to them in unredacted form because of their relevance to the proceedings and taking into account the protection which suppression and non-publication orders will afford to the victims named therein. Examples are at tabs 14, 15, 16, 18, 21, 70 and 71.

39. The documents at tabs 10, 28, 29, 31 to 33, 36 – 40, 43 – 65, 81 and 82 are communications between Church officials, including in some cases McAlinden himself, concerning the subject of the allegations against McAlinden and/or concerning his position in the Church. In the documents of this class as originally produced by the second defendant to the Court, redactions were made principally of the names of complainants or identifying details or descriptions of them. Those details must be opened to inspection by the plaintiff, for reasons already given. Most of those documents were produced with the signature and the name of the signatory obscured. There is no conceivable basis upon which the plaintiff could be denied access to full copies of these documents showing the signature and the identity of the correspondent. Upon ordering that the plaintiff have access to unredacted copies of these documents I will not make any order (under the Court Suppression and Non-Publication Orders Act or otherwise) to suppress or restrict the publication of the names of these signatories, all of them Church officials.

Letter from Mr Cotter to the Bishop Elect, 17 May 1976

40. One of these documents, number 28, is a handwritten letter dated 17 May 1976. That is a date early in the period within which the plaintiff alleges she was abused. It was written by a Church official named Cotter to Leo Clarke as Bishop Elect of the Diocese. The office, standing or capacity of Mr Cotter is not disclosed.

41. This letter informs the Bishop Elect that McAlinden had been a parish priest within the Diocese since September 1973, after an absence of four years in New Guinea from 1969. He had, of course, previously been a parish priest from the early 1950s up to 1969. The letter stated that McAlinden was in May 1976 the parish priest of Forster Tuncurry and that the author, Mr Cotter, had received a deputation of parishioners "led by a young solicitor" complaining that McAlinden “has an inclination to interfere (touching only) with young girls – aged perhaps 7 to 12 or so”. Mr Cotter wrote that "on examination this is found to be factual". He said he had put the allegation to McAlinden and the latter had

“agreed it is a condition that had been with him for many years. He feels no such inclination towards the mature female but towards the little ones only.”

42. The letter continued that McAlinden was "willing to resign his charge of the parish". Mr Cotter drew the following surprisingly benign conclusion:

“I have never heard of this condition before and knowing Fr. Mac, as we do, we think it cannot be real serious, nor do we believe that there is any danger of a development into assault or rape.”

Mr Cotter added:

“At the same time what has been going on is more than can be tolerated.”

43. He reported that the Diocesan Consultors had met and agreed to accept McAlinden's resignation. Despite the circumstances of McAlinden's proposed departure from the Diocese, Mr Cotter opined to the Bishop Elect that:

“I would still say that we can recommend Fr. Mac to Bishop Thomas provided of course the bishop is told something of all this background.”

44. Thomas was the bishop of Geraldton in Western Australia where McAlinden had said he wished to go. Mr Cotter's letter stated that McAlinden held a strong wish to depart for Geraldton "because it would afford a good cover-up for his resigning the parish". Mr Cotter envisaged trying "to find some appropriate treatment for [McAlinden] over the next two months" and then having him back in the Diocese of Maitland-Newcastle after "one or two years".

45. This letter, given its date towards the beginning of the period in which the plaintiff complains she was sexually abused, is very close to the heart of the plaintiff's case. I have not gained from the evidence tendered on the notice of motion nor from the submissions made any understanding of how the second defendant could have thought that it would be a sufficient compliance with the subpoena to have produced this letter with the name of its author obscured. In any event, the plaintiff is now to have access to an unredacted copy under the orders which I will make pursuant to r 33.8.

Documents held by the second defendant only in redacted form

46. Some of the documents produced by the second defendant were redacted by others before they came into the hands of the Diocese. The orders for access which I will make will result in the plaintiff only being able to inspect the documents in the form in which the second defendant has them to produce. Tab 1 in exhibit A, an Ombudsman's report, is an example.

Orders

47. Having indicated at the conclusion of the hearing on 10 March 2016 that my decision would be to the above effect, I requested counsel to bring in short minutes of orders. Orders 1 to 3 which I now make are agreed by the parties to be suitable to give effect to these reasons. Order 4 as to costs constitutes my exercise of discretion in that regard. The orders of the Court are:

1. In respect of the subpoenas served on the second defendant and the Professional Standards Office, NSW, filed on 25 June 2015 (as amended), the plaintiff and her legal advisers may have access to all documents produced in response to those subpoenas in an un-redacted form.

2. Upon the grounds that suppression and non-publication of the name and identity of various complainants of sexual abuse appearing in documents produced in the subpoenas referred to in Order 1 are necessary in the public interest because of the personal sensitivity of the subject matter of their complaints and the potential for disclosure or publication of their name or identity to cause them undue distress and embarrassment - it is ordered pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that:

1. neither the full name of the complainants nor any other particulars which might enable them to be identified is or are to be disclosed to any person other than the parties to the proceedings;

2. the complainants are to be referred to in all documents filed in Court or records of the proceedings only by pseudonyms to be agreed by the parties and in due course notified to the Court; and

3. the publication of the complainants’ full name and/or of any other particulars which might enable them to be identified is prohibited.

3. Costs of and incidental to the second defendant’s Notice of Motion filed on 7 March 2016 be the plaintiff’s costs in the cause.

4. The costs of all parties affected of the notice of motion filed 7 March 2016 and the amended notice of motion filed 9 March 2016 on behalf of Mr Salmon be borne by the parties respectively.

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Decision last updated: 24 March 2016