● P1 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P2 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P3 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P4 v Trustees..
[2015] NSWSC 698
•3 June 2015
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New South Wales |
Case Name: | ● P1 v Trustees of the Daughters of Our Lady of the Sacred Heart & Ors; ● P2 v Trustees of the Daughters of Our Lady of the Sacred Heart & Ors; ● P3 v Trustees of the Daughters of Our Lady of the Sacred Heart & Ors; ● P4 v Trustees of the Daughters of Our Lady of the Sacred Heart & Ors; ● P5 v Trustees of the Daughters of Our Lady of the Sacred Heart & Ors |
Medium Neutral Citation: | [2015] NSWSC 698 |
Hearing Date(s): | 2 June 2015 |
Date of Orders: | 3 June 2015 |
Decision Date: | 3 June 2015 |
Jurisdiction: | Common Law |
Before: | Beech-Jones J |
Decision: | 1. The Court declines to make an order under Uniform Civil Procedure Rule 31.19(3) in respect of the report of Dr Tronc dated 28 April 2015 and the supplementary report of Dr Tronc dated 9 May 2015. |
Catchwords: | EXPERT REPORT – report served just prior to final hearing – no directions sought for service of expert reports – whether Court should otherwise order under UCPR 31.19(3) – explanation for delay – prejudice occasioned to plaintiffs by rejection of report – report inadmissible – prejudice occasioned to defendants by late service of report. |
Legislation Cited: | - Civil Liability Act 2002 – Part 3, s 3B(1) |
Cases Cited: | - Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 |
Category: | Procedural and other rulings |
Parties: | In 2013/173266, 2013/173275 |
Representation: | Counsel: |
File Number(s): | 2013/163275; 2013/163346; 2013/173258; 2013/173266; 2013/173275; 2013/173271; 2013/173266 |
Publication Restriction: | Orders precluding the publication of the name and address of each plaintiff and any member of their families. |
EX TEMPORE JUDGMENT (REVISED FROM TRANSCRIPT)
This judgment concerns an application by the plaintiffs for directions enabling them to rely on certain experts' reports concerning liability that have been served just prior to the commencement of the final hearing.
There are five proceedings before the Court. The plaintiff in each proceeding was a student at the St Agnes Primary School in Matraville some time during the years 1979 to 1984. Each of them was sexually abused by a teacher at the school, Michael Drew. In circumstances I will describe they sue the principals of the school during the period 1979 to 1982, as well as various other persons associated with the Catholic Church who are said to be responsible for the operation of the school, for damages.
A final hearing of the proceeding is fixed to commence on Tuesday 9 June 2015. In May 2015 the plaintiffs served two reports of Dr Keith Tronc and a statement of Dr Tronc without first having sought directions under Uniform Civil Procedure Rule (“UCPR”) 31.19. They now seek those directions. To address the plaintiffs' application, it is first necessary to explain the issues in the proceedings.
Issues in the proceedings
There are ten defendants to at least one set of proceedings brought by one of the plaintiffs. Any difference in the identity of the defendants to the five proceedings is immaterial to this application. I will describe the defendants to the proceedings brought by P4.
The first defendant to those proceedings is the Trustees of the Daughters of Our Lady of the Sacred Heart, being a body incorporated pursuant to s 4 of the Roman Catholic Church Communities' Lands Act 1942. The plaintiffs assert, and the defendants deny, that it operated and had the care, management and control of the school.
The second defendant is the executor of the estate of the late Sister Julian ("Sister Julian"). Sister Julian was the principal of the school in 1979.
The third defendant is Ancilla White, who was the principal of the school in 1980.
The fourth defendant is former Sister Geni Hunt (formerly Jeannie Hunt), who was the principal of the school in 1981.
The fifth defendant, William Rooney, was the principal of the school in 1982. Mr Rooney dismissed Mr Drew in 1982.
The sixth defendant is the executor of the estate of the late Maria Shanahan who was "the Provincial Leader" of the Sisters of Our Lady of the Sacred Heart at the relevant time ("the Provincial").
The seventh to tenth defendants are either former members or representatives of the estate of former members of the Provincial Council of the Sisters of Our Lady of the Sacred Heart.
The pleadings reveal a substantial dispute between the parties as to who had responsibility for the appointment and supervision of teachers at the school. However, it suffices to state that the defendants at least accept that the relevant person with the responsibility for the school from time to time was the principal, and that the principal was appointed by the Provincial.
Each of the plaintiffs sues the defendants for an "intentional tort" and for negligence. The pleading of the former contends various acts and omissions of the defendants were intended to cause the plaintiff injury or involved reckless indifference to the injury being occasioned to the plaintiff. Although it is not entirely clear, one part of the pleading also asserts the defendants are vicariously liable for the intentional acts of Mr Drew. In oral argument on this application Senior Counsel for the defendants, Ms Lonergan SC, accepted that Mr Drew was an employee of the principal from time to time. Whether the plaintiffs will embrace that concession is unclear and, in any event, regardless of who Mr Drew's employer was, there will clearly be dispute as to whether his actions in sexually assaulting children were undertaken in the course of his employment.
In relation to negligence, various particulars of negligence are put forward in the pleadings. It suffices to state at this point that, in respect of all plaintiffs other than P1, there is a concession of liability on the part of Sister Julian. It appears that this concession is based on an acceptance that P1 complained to her about her sexual abuse at the hands of Mr Drew in 1979, that Sister Julian, the then principal, did not take any appropriate action and that plaintiffs P2 to P5 were abused subsequently. Further, all of the defendants have advised the Court that the estate of Sister Julian will be indemnified to the extent of any judgment against her in favour of any or all of the plaintiffs.
These concessions are in themselves sufficient to yield a judgment in favour of P2 to P5 assessed in accordance with the restrictions on damages in Part 3 of the Civil Liability Act 2002. Nevertheless, amongst other issues, there remains to be determined in those cases the respective plaintiff’s claim that their damages are not so restricted because each of them can establish that s 3B(1)(a) of the Civil Liability Act is applicable, namely, that they can establish a civil liability of a person in respect of an intentional act that was done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person.
In relation to P1, there is no concession of liability for negligence on the part of any defendant. Clearly one issue in her case is whether or not it can be established that any precaution was required to be taken to guard against the risk of sexual assault by Mr Drew or any other teacher prior to her making complaint to Sister Julian in 1979.
Timing of the reports
The proceedings were all commenced in 2013, being many years after the terrible events that gave rise to them. They were case-managed by a Judge from early 2014. Numerous orders were made throughout 2014 which included provision for the service of witness statements. On the application of the plaintiffs, in August 2014, a hearing date of 9 June 2015 was allocated.
On 8 April 2015 a briefing letter was sent to Dr Tronc. His report was received by the plaintiffs' solicitors on 30 April 2015. On that day a mediation of the proceedings concluded. It was unsuccessful. The proceedings were listed for mention before Adamson J on 5 May 2015.
At no time from the commencement of the proceedings up to and including 5 May 2015 was any application made for leave to rely upon experts' reports on liability nor was there any reference made to any intention to rely on them. The first notice the defendants received of such an intention to rely on them was when a report of Dr Tronc was served on them on 7 May 2015. A supplementary report as well as a statement of Dr Tronc was served on 12 May 2015. The defendants' solicitors then had the proceedings relisted before me on 14 May 2015. I fixed 2 June 2015 for a hearing to determine whether reliance by the plaintiffs on the material from Dr Tronc would be allowed.
Both in correspondence and in the mention before me on 14 May 2015 the plaintiffs contended that, if no order was made fixing the time for the service of such experts' reports, then UCPR 31.28(1)(c) allowed them an unfettered right to rely on an expert's report provided it was served 28 days prior to a trial.
In argument on 2 June 2015, Senior Counsel for the plaintiffs, Mr Bartley SC, did not embrace this contention. He accepted that his clients were seeking an indulgence. In particular, UCPR 31.28 is to be read subject to UCPR 31.19, which obliges a party, who is either “intending to adduce expert evidence at trial” or “to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial” to “promptly” seek directions from the Court.
If such an application for directions is made and the Court determines to allow expert evidence to be adduced then, at that point, it is to be expected that directions will be made concerning the timing of the service of reports. If such directions are made then they will engage with UCPR 31.28(1)(a). It is only in a rare case that directions will be made for the service and reliance of experts' reports that no direction will be made for the time of service or for which no time for service is referred to in the practice note such that UCPR 31.28(1)(c) will be engaged.
In any event, in this case there is no doubt that at least as far back as early April 2015 UCPR 31.19(1) was engaged, but there was then no prompt application for directions. Further, the history of case management of the proceedings demonstrates that such directions should have been sought long before now. It is true that the issues in the proceedings have recently been refined in light of the concessions of the defendants already noted. It is unnecessary to identify the precise timing of those concessions because, in any event, they do not affect the position of P1, yet it is to her case that Dr Tronc's reports are primarily directed.
The failure to comply with the UCPR 31.19(1) means that the plaintiffs are subject to the operation of UCPR 31.19(3), namely, that "unless the Court otherwise orders" the expert evidence of Dr Tronc cannot be adduced at the trial. The determination of whether the Court would otherwise order that expert evidence may be adduced is governed by the various strictures in the Civil Procedure Act 2005 including s 56.
The plaintiffs' burden of persuading the Court to otherwise order is made much more difficult by the absence of any detailed explanation for why directions were not sought at a much earlier point. Nevertheless, I am prepared to infer in their favour that the decision to retain Dr Tronc was the result of a reconsideration around that time as to what was required to prove the plaintiffs' cases rather than a deliberate tactical decision to delay obtaining a report. Even so, such an application tends against the Court otherwise ordering.
In any event, the critical factors are the prejudice that would be occasioned to the plaintiffs by the Court refusing to otherwise order against the consideration of the prejudice that would be occasioned to the defendants by so ordering. This assessment must be undertaken in a context where neither party seeks an adjournment of the hearing commencing on 9 June 2015.
In considering the question of prejudice, it is first necessary to describe the scope and potential relevance of Dr Tronc's reports and statement.
Dr Tronc's report
Dr Tronc has professional qualifications in education and law. These include a PhD in educational administration from the University of Alberta and legal practice qualifications from the Queensland University of Technology which were obtained in 1983. His curriculum vitae is extensive. It reveals that he has spent over thirty years in the Queensland education system, including ten years as a primary school teacher and principal, and many years thereafter educating teachers, supervising teachers and pursuing curriculum development. His curriculum vitae lists a number of consultancies and publications in those areas. These include his co-authorship of a text, "Australian Schools and the Law", some time in the late 1970s. While it is not entirely clear, it seems that from the early 1990s he has been practising as a barrister.
I will deal first with Dr Tronc's report served on 8 May 2015 (the “first report”). There was a substantial debate on the hearing of this application as to the admissibility of Dr Tronc's first report. This debate occurred because, depending upon the nature of the objection that is taken, if it was concluded that the report was wholly or largely inadmissible then a debate about prejudice would either fall away or at least would fall to be assessed on the basis that little prejudice would be occasioned to the plaintiffs by refusing leave for them to rely on a report that was inadmissible.
In the end result, it is not necessary to address all of the objections that were raised to Dr Tronc's report. The general topic of Dr Tronc's report is the response of schools and supervising authorities to the potential for sexual abuse of students by teachers. At a broad level of generality, for the report to be admissible it must be demonstrated that Dr Tronc has “specialised knowledge based on his training, study or experience” and that the opinions he expresses are “wholly or substantially based on that knowledge” (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [35]). In some cases, and this is one, these interrelated matters focus attention on the form of the opinion as that will reveal whether the second of those matters has been demonstrated, that is, whether the opinions expressed were wholly or substantially based on any specialised knowledge it has been demonstrated he possesses.
I mean no disrespect to Dr Tronc, but, regrettably, the structure and wording of his report is such that it cannot be determined that the relevant opinions in his report are wholly or substantially based on his specialised knowledge. Three particular aspects of his report illustrate this. First, the executive summary to Dr Tronc’s report states as follows:
“The supervision provided to children, in the years 1979 to 1982, by the authorities of a New South Wales non-government Catholic primary school was insufficient and ineffective, not satisfying the standards of usual industry practice, nor of normal professional criteria. Risk management requirements were not met. There was deficient superordinate supervision by the school’s senior officers, of the role performance of religious personnel and lay teachers, one of whom, while acting in the course of his employment, perpetrated numerous acts of sexual and physical abuse upon the children assigned to his care. Although the school authorities were directly aware of some instances of aberrant behaviour by the teacher, and had numerous other instances of suspicious acts suggesting abuse of children, they failed to adequately investigate and intervene.”
Nowhere in Dr Tronc's report does he identify the "standards of usual industry practice" to which he refers in this executive summary. Further, nowhere in his report does he identify either the "normal professional criteria" or the" risk management requirements" that he refers to in this executive summary. In the absence of those matters being identified, there is simply no way one can embark upon the enquiry of determining whether this opinion is based upon any relevant specialised knowledge he possesses.
Second, Dr Tronc's report is replete with a quasi-legal analysis. In the above passage he refers to the acts of Mr Drew as having been perpetrated while he was "acting in the course of his employment". In other parts of the report he deploys terms such as "risk of harm", "duty of care", and purports to attribute legal complicity for Mr Drew's reprehensible conduct to the various defendants. As best as can be ascertained, all of these aspects of his report do not appear to be based upon his expertise in the area of education. While he has legal qualifications, he is not being put forward as a legal expert and, even if he was, such an approach would be impermissible.
Third, in various parts of his report, Dr Tronc expresses opinions on matters that have no timeframe attached to them or, if they do, they refer to a very substantial time period that both includes the time the subject of these proceedings, but extends well past it. This approach makes it difficult, and in some respects impossible, to ascertain the relevance of the opinion to these proceedings as well as to identify whether the relevant opinion is truly based upon his relevant expertise.
In the end result Mr Bartley SC sought to defend three particular aspects of Dr Tronc's report as they are of particular relevance to P1's case. Dr Tronc's report appears to be of little relevance to P2 to P5's cases given the issues remaining in those cases which have partly been described above.
However, once the point is reached that Dr Tronc's report has to be filleted to extract some morsels of admissible evidence, then the Court is inevitably at the point that the proper course is to refuse to otherwise order under UCPR 31.19(3). The later the report was served the greater the need for clarity in terms of admissibility so that the prejudicial impact upon the defendants can be identified and minimised. Nevertheless, out of concern to assess the potential importance of Dr Tronc's report to P1's case, I will address the aspects referred to by Mr Bartley SC.
The first is so much of Dr Tronc's report as addresses the level of recognition in the late 1970s of the potential for teachers to abuse school children. On this topic the relevant parts of Dr Tronc's report state as follows:
“While in the 1950s, 1960s, 1970s and [1980s] there had been, as yet, no significant formal Government inquiries nor any Royal Commission, into the perpetrations of sexual abuse upon children by Catholic school teachers and priests, there was, nevertheless, a fairly extensive general anecdotal awareness among educational practitioners, that sexual abuse was an ongoing problem in some Catholic educational institutions.”
“For the period 1950 to 1964 the Report Writer has relied upon knowledge personally and directly gained by him in his roles of primary school teacher, primary school principal, and secondary school teacher. For the period 1965-2015 the Report Writer has relied on knowledge personally and directly gained by him as an educational academic, barrister and expert witness report writer.”
“In summary, it is my opinion that the school officials and the governing authority of St Agnes Primary School would have possessed the following levels of awareness of the concept of sex abuse of children:
... (b) 1970s decade – some awareness of the phenomenon of teachers being Abusers as a result of publicity of court trials of paedophile priests.”
To the extent that the first and third of these comments relate to the 1970s, they are not easily reconcilable. The first quote refers to a "generally anecdotal awareness" whereas the third quote only identifies an awareness arising from publicity associated with the trials of paedophile priests.
Overall these passages leave a great deal of uncertainty of whether the basis for an assertion of a recognition of the risk posed to students from sexual abuse by teachers was based upon any specialised knowledge of Dr Tronc. This problem is not dispelled by reviewing the remainder of his report. While there are snippets of information from which one might be able to guess the basis for these statements, they are not identified with sufficient clarity to enable a conclusion to be drawn that this aspect of the report is admissible.
Mr Bartley SC queried whether the defendants would truly put in issue the proposition that in the late 1970s the potential for sexual abuse of students by teachers was recognised. From the debate it seems that that may be in issue, but at this point it is really beside the point. There may be a means of demonstrating that the defendants should have been aware of at least this potential, including by reference to the general requirements of the criminal law which prohibited such conduct and potentially the operation of the common law offence of misprision of felony which, at least in some circumstances, may have imposed an obligation to report it. Nevertheless, the matter will not be advanced by resort to an inadmissible expert's report.
The second aspect of the report concerns the recognition of the responsibility of schools to protect the welfare of children. The difficulty with those parts of Dr Tronc's report that address this topic is that the sources he identified all post-date the events the subject of these proceedings by many years. It may be that the existence of that responsibility is a matter that the plaintiff can demonstrate by the use of the traditional analytical tools provided by the law of negligence, including the legislative provisions adverted to as well as the concepts of control, vulnerability, etc, along with discussions in various case law, however, Dr Tronc's report advances nothing on this front.
The third aspect of Dr Tronc's report pointed to by Mr Bartley SC is potentially the most useful for P1. In one part of his report Dr Tronc lists eight precautionary steps that were available to address the risk of sexual abuse of students which include, for example, the conduct of audit inspections by administrators from the school authority. However, nothing in Dr Tronc's report identifies any basis which warranted the adoption of those steps nor any basis for determining whether they were undertaken by any school authority anywhere in the late 1970s to early 1980s. There is thus no means of ascertaining whether the adoption of those precautions was some form of standard or otherwise obligatory, on the one hand, or simply represents Dr Tronc's preferred approach to what a school authority should have done, ascertained with the benefit of hindsight on the other.
Dr Tronc's supplementary report
In his supplementary report, Dr Tronc addresses a specific question he was asked. The question identified a particular practice of Mr Drew which apparently involved his staying in an enclosed locked room with young female students while they were changing for sport and his excluding the male students. In broad terms, Dr Tronc states that any principal, deputy principal or senior teacher who passed the corridor or otherwise became aware of the practice should have intervened.
The difficulty with this report is that Dr Tronc simply states that as a bare conclusion. While experts addressing in brief terms such specific scenarios in a supplementary report is quite common, that is usually undertaken against the backdrop of an earlier report that identifies the relevant criteria or standards to which they will apply and justifies the basis for asserting that those criteria and standards are applicable. However, in this case, neither in the supplementary report nor in the first report, is there anything that would be able to explain how the answer given by Dr Tronc in his supplementary report is based upon any specialised knowledge that he possesses.
Dr Tronc's statement
In his statement, Dr Tronc annexes a page from the book that he co-authored, to which I referred earlier. The page gives advice to teachers about how to protect themselves from allegations of abuse. In his statement Dr Tronc explains the extent of the publication of the book. He also sets out the source of the information for the statements made in the book and explains why he wrote it. The fact and extent of the publication of the extract from the book appears to me to be of relevance to the proceeding in that it arguably alerts the reader to the risk to children of abuse from teachers. The fact that it was published is not expert evidence nor is Dr Tronc's evidence as to the extent of the publication.
Prejudice to the defendants
The defendants' solicitor, Michael do Rozario, swore a number of affidavits concerning the efforts made to obtain a suitably qualified expert to respond to Dr Tronc's reports. Two solicitors in his team conducted some Internet based research and Mr do Rozario caused enquiries to be made through the Catholic Education Office. In oral evidence Mr do Rozario also stated that “Catholic Church Insurances” (CCI) were involved in his discussions with the Catholic Education Office about obtaining a suitable expert.
It is clear that the efforts of Mr do Rozario and his team were directed towards retaining an "independent" expert in the sense of an expert who is not currently and has not previously been engaged in some position within the Catholic Church hierarchy that was involved in the delivery of educational services. Mr do Rozario and his team identified three potential candidates who, broadly, were historians who have a particular focus on the history of education. That category of expert and their focus is understandable because the potentially significant parts of Dr Tronc's first report was his attempt to identify the level of recognition in the 1970s of the potential for sexual abuse of students by teachers, whether any schools or educational systems had standards, protocols or procedures for addressing that potential and, if so, what they were. An historian is at least one class of expert who can address that issue by presumably undertaking an exhaustive review of the relevant literature. The other possible category of an expert who could respond to Dr Tronc's opinions on this topic is a school principal or administrator of schools who had knowledge appropriate to the late 70s. Such a person is most likely a relatively rare species in 2015.
The result of the enquiries of the three persons identified by Mr do Rozario and his team was that they were not able to provide a report within any timeframe that would involve the retention of the current trial date or any trial date that was fixed this year. In the end result, there was no real challenge to that assessment.
However, two matters were raised by Mr Bartley SC in his cross-examination and submissions. The first was that it was open to the defendants to adduce evidence from persons within the Catholic Church organisation and, in particular, Father Kelvin Canavan or Dr Dan White. Father Canavan was the former and longstanding head of the Catholic Education Office in New South Wales and Dr White is his successor. I will not set out the details of their careers, but it suffices to state that they both have a long involvement in Catholic education in New South Wales.
While it can be accepted for the purpose of this argument that both, and especially Father Canavan, may be able to give evidence concerning the educational practices that were in fact adopted in the 1970s, that does not provide any substantial answer to the defendants' contention that they are prejudiced in responding to Dr Tronc's reports. Mr do Rozario's evidence was that both Father Canavan and Dr White have stated that they do not consider they are qualified to give expert evidence. That would be an especially bad start to any attempt to qualify them as such. Critically, both are clearly not "independent" witnesses in this matter. Dr White has verified the defences that have been filed. Father Canavan is a witness of fact.
Second, Mr Bartley contended that there were likely to be other experts available to the defendants, bearing in mind what was said to be the extensive history of the defendants' solicitors and CCI's dealings with claims of this character. However, it suffices to state that the evidence did not demonstrate the existence of any previous claim of which the relevant players were or should have been aware that involved the particular issues and the particular timeframe the subject of these proceedings.
In the end result, and leaving aside its admissibility, while there is reason to believe that the defendants have some means available to them of responding to Dr Tronc's reports, I am satisfied that the defendants have not had a reasonable opportunity to obtain independent expert evidence to respond to Dr Tronc's reports. Like all other litigants, that is an opportunity to which they are entitled and the denial of it amounts to a relevant form of prejudice. It is a prejudice that cannot be addressed in this matter without an adjournment of the hearing date.
These observations do not, however, apply to so much of Dr Tronc's statement which outlines the fact and extent of the publication of his book in the late 1970s. As I have stated, that is not expert evidence so that UCPR 31.19(3) has no application in relation to it. While it was served late, no prejudice arising from its tender on the basis stated is apparent at this point, although the question of its admissibility must await the hearing.
Conclusion
In relation to Dr Tronc's report and supplementary report, I will not otherwise order under UCPR 31.19(3) that they be adduced in evidence. The explanation for their late service is not satisfactory. The relevant parts of the reports are not admissible so that a refusal of leave to rely on them will not ultimately occasion any real prejudice to the plaintiffs. Against that, I am satisfied that the defendants have not had a reasonable opportunity to obtain independent expert material to respond within the timeframe of the current hearing.
No order is required under Uniform Civil Procedure Rule 31.19(3) in respect of Dr Tronc's statement. I will address its tender at the appropriate time of the hearing. Consistent with the above reasoning, and subject to further argument, I am inclined to allow the tender of an extract from Dr Tronc's book subject to an order under s 136 of the Evidence Act 1995 restricting its use to proving the fact that it was published and I am inclined to allow the tender of so much of the statement as explains the extent of the book's publication.
Accordingly, the Court declines to make an order under Uniform Civil Procedure Rule 31.19(3) in respect of the report of Dr Tronc dated 28 April 2015 and the supplementary report of Dr Tronc dated 9 May 2015.
Costs are reserved.
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Amendments
05 June 2015 - Cover sheet: correct jurisdiction to "Common Law".
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