PG v State of Queensland

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DISTRICT COURT OF QUEENSLAND

CITATION:

PG v State of Queensland [2023] QDC 109

PARTIES:

PG

(plaintiff)

v
STATE OF QUEENSLAND

(respondent)

FILE NO/S:

BD2513/21

DIVISION:

Civil

PROCEEDING:

Application for leave under rule 470 of the Uniform Civil Procedure Rules 1999 (Qld) and under rule 223 of the Uniform Civil Procedure Rules 1999 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2023

JUDGES:

Smith DCJA

ORDER:

1. Pursuant to Rule 470 of the Uniform Civil Procedure Rules 1999 (Qld) leave is granted to the plaintiff to make the application.

2. Pursuant to Rule 223 of the Uniform Civil Procedure Rules 1999 (Qld) the defendant is ordered to make disclosure of the following documents:

(a)      Unredacted copies of notice of claim forms provided in a redacted form under cover of the defendant’s solicitor’s letter dated 24 February 2023, except the personal addresses and personal contact details of the claimants. The disclosure is on condition that the plaintiff’s solicitors are to securely store the documents and only one copy is to be made for counsel and no further copies are to be made.  

(b)      Any document (including but not limited to records of complaints, incident reports, investigation documents, liability responses, pleadings or affidavits containing information about the allegations - except those over which a valid claim for legal privilege is made) concerning the allegations giving rise to the alleged liability of the defendant in the notice of claim forms referred to in (a) above.

(c)      Any document (including but not limited to records of complaints, investigation documents, pre-court proceedings or court documents - except those over which a valid claim for legal privilege is made) recording information about or allegations of sexual abuse of a juvenile detainee by a detention officer at the Brisbane Youth Detention Centre occurring in the period 22 June 1999 to 8 September 2007.

(d)      Any documents (including but not limited to daily logs and records, records of complaints, investigation documents, pre-court proceedings or court documents - except those over which a valid claim for legal professional privilege may be made) recording or alleging the digital penetration of a juvenile detainee’s anus by a detention officer during a purported search of the juvenile detainee at the Brisbane Youth Detention Centre occurring in the period 22 June 1999 to 8 September 2009.

3.   I give the parties liberty to apply. 

4.   I will hear the parties on the question of costs.

CATCHWORDS:

PROCEDURE- DISCOVERY AND INTERROGATORIES –­ DISCOVERY AND INSPECTION OF DOCUMENTS – where plaintiff claims he was sexually abused at the Brisbane Youth Detention centre – where plaintiff claims the defendant is liable for negligence, breach of statutory duty and is vicariously liable – where 52 claim forms have been disclosed from other complainants but where the details of the complainants have been redacted – where the plaintiff seeks disclosure of documents relating to these claims – where the plaintiff seeks documents from 1999 to 2009 when the…

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Details
Case
[2023] QDC 109
Decision Date

CaseChat Overview and Summary

The case of PG v State of Queensland involved a plaintiff who alleged that he had been sexually abused while detained at the Brisbane Youth Detention Centre. The plaintiff claimed that the defendant, the State of Queensland, was liable for negligence, breach of statutory duty, and vicarious liability. The plaintiff sought disclosure of documents related to the claims made by other complainants who had filed claim forms. The defendant had previously disclosed 52 claim forms but had redacted the details of the complainants. The plaintiff requested disclosure of documents from the period 1999 to 2009, during which the alleged abuse occurred in 2004. The legal issues before the court were whether the documents should be disclosed and, if so, whether they should be redacted.

The court found that it was likely that primary documents not protected by legal professional privilege existed for at least some of the claims, such as liability responses, complaint records, incident/investigation reports, or statements. The court also found that notices of claim or complaint documents/incident reports likely existed for the period September 2004 to September 2009. The court determined that the majority of claimants were aware that their claim forms would be disclosed to third parties and that there would be a lack of confidentiality. The court further found that the defendant had acted under a misconception regarding the disclosability of certain documents. The court concluded that the plaintiff was not estopped from seeking the unredacted claim forms.

The court ordered that the defendant must disclose unredacted copies of the claim forms, except for the personal addresses and contact details of the claimants, on the condition that the plaintiff's solicitors securely store the documents and only make one copy for counsel. The court also ordered the disclosure of any documents related to the allegations of sexual abuse of juvenile detainees by detention officers at the Brisbane Youth Detention Centre from 22 June 1999 to 8 September 2009, except those over which a valid claim for legal professional privilege could be made. The court granted the parties liberty to apply and reserved the question of costs for later determination.

Orders

Orders of the court

1. Pursuant to Rule 470 of the Uniform Civil Procedure Rules 1999 (Qld) leave is granted to the plaintiff to make the application.

2. Pursuant to Rule 223 of the Uniform Civil Procedure Rules 1999 (Qld) the defendant is ordered to make disclosure of the following documents:

(a) Unredacted copies of notice of claim forms provided in a redacted form under cover of the defendant’s solicitor’s letter dated 24 February 2023, except the personal addresses and personal contact details of the claimants. The disclosure is on condition that the plaintiff’s solicitors are to securely store the documents and only one copy is to be made for counsel and no further copies are to be made.

(b) Any document (including but not limited to records of complaints, incident reports, investigation documents, liability responses, pleadings or affidavits containing information about the allegations - except those over which a valid claim for legal privilege is made) concerning the allegations giving rise to the alleged liability of the defendant in the notice of claim forms referred to in (a) above.

(c) Any document (including but not limited to records of complaints, investigation documents, pre-court proceedings or court documents - except those over which a valid claim for legal privilege is made) recording information about or allegations of sexual abuse of a juvenile detainee by a detention officer at the Brisbane Youth Detention Centre occurring in the period 22 June 1999 to 8 September 2007.

(d) Any documents (including but not limited to daily logs and records, records of complaints, investigation documents, pre-court proceedings or court documents - except those over which a valid claim for legal professional privilege may be made) recording or alleging the digital penetration of a juvenile detainee’s anus by a detention officer during a purported search of the juvenile detainee at the Brisbane Youth Detention Centre occurring in the period 22 June 1999 to 8 September 2009.

3. I give the parties liberty to apply.

4. I will hear the parties on the question of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 2 June 2023 Ms Reeves from Crown Law instructed two employees to search Crown Law internal records to see if any of the claimants had commenced proceedings. Fourteen had, in addition to the four disclosed in May 2022. These have been disclosed to the plaintiff.Conclusions on the evidence I conclude the following on the evidence on the balance of probabilities:(a)That it is more likely than not that with respect to at least some of the 52 notices of claim there are primary documents not the subject of legal professional privilege such as liability responses under section 20 of PIPA. I also conclude it is likely that for some of the claims there would be complaint records, incident/investigation reports or statements or notes which were not prepared for the litigation. It is likely that some of the children and/or their parents (whether or not notices of claim have been issued) would have made complaints at the time. Under section 268 of the Juvenile Justice Act 1992 (Qld) there was a requirement to immediately report harm to a child. Further, under section 277 of the Act there was a right for a child or parent of a child detained to make complaint to the Chief Executive or a community visitor. Regulations 35, 36 and 37 of the Juvenile Justice Regulation 2003 (Qld) required records to be kept of harm to a child. This is likely because for some of the claims, there was an emergency response.(b)It is more likely than not that notices of claim or complaint documents/incident reports exist relating to the period September 2004 to September 2009. It is true that 750 claims relate to the period up until September 2022, but we know 52 relate to the period 1999 until 2004. It is unlikely there would be none in the five-year period from 2004 until 2009 – there would be some. (c)The majority, if not all of the claimants by lodging their claim forms were aware they would be disclosed to third parties. Exhibit 5, an example of a claim form shows that a claimant would know that the notice of claim with details of the alleged abuse would be disclosed to BYDC, Crown Law, the alleged abuser and/or other people involved in the incident or witnesses. They would be aware that their personal health details were being disclosed to others, and each person at fault needed to be provided with the notice of claim. They would also be aware the matter would be investigated by the defendant. It is also more likely than not the lawyers would have advised them of the need to issue proceedings if the matter did not resolve. This would involve a lack of confidentiality. (d)I also consider that the defendant has acted under a misconception here. It originally considered none of the claims were disclosable but has since conceded this. It still considers that category 1(c) documents are not disclosable and documents for the five-year period after September 2004 are not disclosable. For the reasons I later give, I consider that some of them are. (e)In light of the history of the matter, I do not consider the plaintiff is estopped from seeking the unredacted claim forms in light of the way the appeal was disposed of. There is no particular detriment alleged by the defendant.[31] [31]Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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