Re XCJ
[2021] QSC 129
•18 March 2021
SUPREME COURT OF QUEENSLAND
CITATION:
Re XCJ [2021] QSC 129
PARTIES:
In the matter of XCJ
FILE NO:
BS 11147 of 2019
DIVISION:
Trial Division
DELIVERED EX TEMPORE ON:
18 March 2021
DELIVERED AT:
Brisbane
HEARING DATE:
18 March 2021
JUDGE:
Holmes CJ
ORDERS:
1. Subject to any valid claim for privilege the Defendant within 28 days disclose to the Plaintiff;
a. All documents:
i. relating to reports of, claims of, investigations regarding and findings of sexual abuse of students of the School or of other children by Teacher A where the documents are directly relevant to the circumstances of any complaint of sexual abuse by Teacher A;
ii. which record conditions of the school which permitted the alleged abuse by Teacher A to occur where the documents are directly relevant to the circumstances of any complaint of sexual abuse by Teacher A;
iii. as to the circumstances in which Teacher A was permitted to deal with children involved the establishment of such intimacy as enabled Teacher A to commit sexual assault, if any, on the Plaintiff.
b. All documents:
i. relating to reports of, claims of, investigations regarding and findings of sexual abuse of students of the School or of other children by Teacher B where the documents are directly relevant to the circumstances of any complaint of sexual abuse by Teacher B;
ii. which record conditions of the school which permitted the alleged abuse by Teacher A to occur where the documents are directly relevant to the circumstances of any complaint of sexual abuse by Teacher B;
iii. as to the circumstances in which Teacher A was permitted to deal with children involved the establishment of such intimacy as enabled Teacher B to commit sexual assault, if any, on the Plaintiff.
c. All documents relating to allegations of, reports to and investigations by the Queensland Police Service in regards to:
i. reports, complaints and claims of child sexual abuse of students of the School or other children against Teacher A or Teacher B where the documents are directly relevant to the circumstances of any complaint of sexual abuse by Teacher A or Teacher B;
ii. which record conditions of the school which permitted the alleged abuse by Teacher A and Teacher B to occur where the documents are directly relevant to the circumstances of any complaint of sexual abuse by Teacher A or Teacher B;
iii. as to the circumstances in which Teacher A and Teacher B were permitted to deal with children involved the establishment of such intimacy as enabled Teacher A or Teacher B to commit sexual assault, if any, on the Plaintiff.
d. Insofar as the above orders require the disclosure of documents relating to the complaint referred to in paragraph 5 of the affidavit of Ross William Cardiff filed today by leave:
i. the complainant be referred to in all documents filed in Court or records of the proceedings only by pseudonyms; and
ii. the Defendant redact from any document disclosed in relation to that complaint any information which identifies the complainant and is not directly relevant to:
1. the circumstances of any complaint of sexual abuse by Teacher A;
2. Conditions of the school which permitted the alleged abuse by Teacher A to occur;
3. The circumstances in which Teacher A was permitted to deal with the claimant involved the establishment of such intimacy as enabled Teacher A to commit sexual assault on the claimant.
2. The Defendant pay the Plaintiff’s costs of the Application.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – IRRELEVANCE – where the plaintiff seeks an order for disclosure of various documents by the defendant – where the defendant resists production of particular documents on the basis that, firstly, the documents did nothing to prove or disprove the allegations in the pleadings and, secondly, that the mere fact that allegations had been made was not probative – whether the documents are relevant to allegations in the proceedings and ought to be disclosed
COUNSEL:
M Eliadis for the applicant/plaintiff
R Morton for the respondent/defendantSOLICITORS:
Shine Lawyers for the applicant/plaintiff
Colin Biggers & Paisley Lawyers for the respondent/defendant
HER HONOUR (ex tempore): The applicant seeks an order for disclosure of documents. In his action, he seeks damages for personal injury which he says he suffered as a result of sexual abuse by two teachers, to whom I will refer, respectively, as A and B, when he was a student in 1979 at a school operated by the defendant. The case is put against the defendant on the basis that it breached its duty of care to the plaintiff and also that it is vicariously liable for the conduct of the two teachers because, effectively, of the position in which it put them, enabling intimacy with the plaintiff and other children. Relevantly for present purposes, the defendant denies that the incidents of sexual abuse happened and, while it accepts that it put the teachers in positions of power and control of the children they supervised, does not admit that they were put into a position of intimacy in relation to them.
This application seeks disclosure of any document relating to the propensity of the two teachers to inflict sexual abuse on other children; any document relating to investigations concerning abuse of other children; any documents relating to a report to the Queensland Police; any documents relating to reports and investigations by the Department of Education and Training; and the personnel file of teacher B.
In fact, the application turns on five notices of claim which the defendant received under the Personal Injuries Proceedings Act in 2018 and 2019 in relation to teacher A; a report of an investigation conducted on its behalf into allegations against teacher B, which found them unsubstantiated; its own report of allegations against teacher A to the police department at some time after 2017; and documents in relation to a claim made under the defendant’s own redress scheme concerning an alleged sexual assault by teacher A, which resulted in a payment to that complainant.
Rule 211 of the Uniform Civil Procedure Rules creates a duty in each party to disclose documents “directly relevant to an allegation in issue in the pleadings”. I can say immediately that it seems to me the issues to which evidence would be relevant in this case are whether the teachers committed sexual assaults on other children, which would be relevant to establishing propensity (the propensity point), and whether the circumstances in which the teachers were permitted to deal with children involved the establishment of such intimacy as to enable assaults of the kind (the opportunity point).
The defendant resisted production of the documents on the bases, firstly, that the documents themselves did nothing to prove or disprove the allegations in the pleading and, secondly, that the mere fact that allegations, which the defendant disputed, had been made was not probative.
I do not think those arguments can be accepted. They seek to confine the issue of relevance to whether the existence of the document per se is directly relevant to an issue in the proceeding: but it seems to me, given the purpose of disclosure, that it must also be a question of whether what the document records is directly relevant to an allegation in issue in the proceedings. In other words, a document is directly relevant to such an allegation if it contains information which can be so described.
In this case, if the documents in question record complainants’ assertions of sexual abuse by teachers A or B (the propensity issue), or if they record accounts of conditions of the school which permitted the abuse to occur (opportunity) they would, in my view, be directly relevant to allegations in the proceedings and ought be disclosed. The relevance of that information cannot depend on whether or not the defendant disputes it.
0
0
0