Ryan v The Diocese of Wagga Wagga (Subpoena and discovery ruling)
[2023] VSC 607
•16 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2022 01587
| PAUL RYAN | Plaintiff |
| v | |
| THE BISHOP OF THE ROMAN CATHOLIC DIOCESE OF WAGGA WAGGA, MARK EDWARDS | Defendant |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2023 |
DATE OF RULING: | 16 October 2023 |
CASE MAY BE CITED AS: | Ryan v The Diocese of Wagga Wagga (Subpoena and discovery ruling) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 607 |
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PRACTICE AND PROCEDURE – Discovery of documents – Discovery categories – Test for discovery of documents – Subpoena production of documents – Application to set aside subpoena – Whether subpoenas served a ‘legitimate forensic purpose’ – Limiting scope of subpoenas.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | D Seeman | Arnold Thomas & Becker |
| For the Defendant | R Annesley KC | Wotton & Kearney |
HER HONOUR:
Ryan seeks further discovery of documents from the defendant. The defendant seeks to have set aside three subpoenas issued by Ryan to produce documents going to the same issue. Both applications were returnable before me at the final directions hearing, the matter having been fixed for hearing on 24 October 2023.
In summary, Ryan sues the Catholic Diocese of Wagga Wagga for damages for grooming and sexual abuse perpetrated by a catholic priest Vincent Kiss. The relevant events occurred between 1966 and 1971 when Ryan was a student at Aquinas College in Albury and a member of the Young Christian Students Organisation.
The discovery application sought two further categories of documents: one, provision of the priest or personnel file of Father Bernard Connell, who was in 1968 Curate of St Patrick’s Parish in Albury, and two, all documents containing allegations of abuse by Connell, thereafter listing various documents included in this category. The application is supported by the Affidavit of Kim Price, affirmed 10 October 2023.
The first category is not in dispute. The second category was narrowed in Ryan’s oral submissions to documents relating to Connell’s conduct prior to or during 1968.
Connell is not alleged to have perpetrated abuse on Ryan. Rather, the Amended Statement of Claim identifies the following:
(a) The bishop in Wagga Wagga at the relevant time knew or ought to have known of Kiss’s propensity to sexually abuse children. This is particularised in four ways, one of which is that, at paragraph 11(b), in October or November 1968, Ryan told Connell that he has been sexually abused by Kiss.
(b) As a particular of direct negligence of the defendant, at paragraph 13(b), ‘failing to train priests, including Father Connell to report abuse to the Bishop’, and at paragraph 13(e), failing to quarantine Kiss from children.
(c) A claim of exemplary damages was added by amendment in accordance with the order of Judicial Registrar Baker on 2 August 2023. That claim is particularised as follows at paragraph 17(a):
… the knowledge held by Connell and his failure to prevent Kiss from having contact with children including the Plaintiff thereafter is attributable to the Defendant and constitutes a contumelious disregard for the Plaintiff’s right and warrants an award of exemplary damages.
It is anticipated that Ryan will give evidence consistent with his police statement in 1995 that:
(a) he complained to Connell;
(b) he told Kiss that he had complained to Connell; and
(c) Kiss became angry, irate and abusive and said he had some way of shutting him (Connell) up.
Ryan says he took this to mean Kiss had some ‘dirt’ on Connell. The complaint to Connell was made at the end of 1968.
The defendant admits in interrogatories that the complaint was made to Connell and an amendment to the defence to reflect this was anticipated. The fact of the abuse is also admitted.[1] The remaining matters in dispute are the defendant’s response to the complaint as part of the alleged breach of duty of care and, if breach is established, whether the defendant’s conduct warrants an award of exemplary damages.
[1]By paragraph [10] of the Defence filed on 25 September 2023.
Ryan alleges that the documents going to complaints or reports of Connell’s abusive behaviour towards children are relevant to the question of the lack of response to Ryan’s complaint. He submits first they go to the likelihood that Connell did not pass on the complaint, and they are relevant to an assessment of Ryan’s evidence that Kiss told him he was able to ‘shut him up’. They are also relevant because the fact of Connell’s conduct as the person complained to, and Kiss’s apparent knowledge of that conduct, bears upon the question of exemplary and aggravated damages.
The affidavit in support of the further discovery sets out information that Connell faced criminal charges in relation to two complaints made against him for events occurring in 1964 and 1967 respectively. In the case of the 1967 allegation, Connell was acquitted of the charge following a trial in 1997. In the case concerning the 1964 allegation, the charges were permanently stayed in approximately 1997.
The defendant takes issue with the relevance of the documents sought given there is no dispute now that a complaint was made. The defendant submits that the documents going to alleged offending by Connell cannot be relevant to the issue of response to the complaint in circumstances where there is no pleading about any interaction between Kiss and Connell or any knowledge by one of actions of the other.
At trial the question of liability will be centred on the response or lack thereof in the face of a complaint made in 1968 by Ryan to a priest in the diocese. Ryan intends to give evidence of what Kiss said to him about Connell, and as to his belief that Kiss had ‘dirt’ on Connell. Public documents indicate two complaints had been made at a later date about Connell’s own conduct prior to 1968. The publicly available information exhibited to the affidavit of Ryan’s solicitor goes no further than that. The defendant criticises the evidence as unidentified hearsay about allegations that were made at a later point in time.
The defendant submits that the documents going to the complaint about Connell cannot establish Connell’s motivation in failing to act regarding the complaint that was made to him, nor can they establish that Connell’s conduct was that of a paedophile. The defendant adds that nor can any documents that go to Connell’s improper conduct establish Kiss’s knowledge of that conduct.
The resolution of the discovery and the subpoena applications is to be consistent with the Civil Procedure Act2010 (Vic) and the Court rules, requiring the ‘just, efficient, timely and cost-effective resolution’ of the real issues in dispute. The defendant takes issue with the lateness of Ryan’s actions, noting that there was a six-month delay between when the Court had ordered subpoenas be issued and the issuing of the subpoena. True it is that the subpoenas are outside the timeframe imposed and the explanation given from the bar table (and not before the Court as evidence) was unsatisfactory, but putting lateness to one side, it is not said that the documents sought, as narrowed by Ryan, cannot be located prior to trial nor that identifying them is onerous or disproportionate. The key question is whether or not they are properly documents within the scope of discovery or a subpoena.
The parties agree on the well settled principles regarding the scope of discovery and the test of legitimate forensic purpose to the issue of subpoenas. Discovery of documents is wider than documents that would be admissible at trial. As was said by J Forrest J in Volunteer Fire Brigades Victoria v CFA (Discovery ruling):[2]
…discovery is an integral component in trial preparation. Discovery is not concerned with admissibility: it is part of the fact finding exercise in getting a case to trial. Indeed, often discovery may lead to a train of inquiry not confined to the tender (or putative tender) of a particular document in the course of a trial. Further, it may be that the document, or its contents can be deployed by a party in cross examination rather than part of its case. Much depends upon what happens at trial. One thing is clear: it is not for this Court on an interlocutory application to determine whether a potentially discoverable document will or will not be admissible at trial: that is the function of the trial judge.[3]
[2][2016] VSC 573.
[3]Ibid [40].
The use that might be made of such documents is a matter for consideration by the parties upon their discovery. The fundamental question is whether or not they may bear upon the question of lack of response by Connell when the complaint was made. In my view, documents going to allegations of improper conduct by Connell prior to the time of Ryan’s complaint are part of the fact-finding exercise relevant to this issue. That is, they may bear upon an assessment of whether, on balance, he failed to pass on the complaint to any other person. In light of Ryan’s police statement and the likely evidence to be given by him, whether or not Connell because of his own circumstances may have had reason not to report the complaint is relevant. Ryan’s police statement says:
He [Kiss] made some statement that he would see Bernie Connell and had a way of shutting him up. Implying he had some ‘dirt’ on him. There was nothing further discussed about this matter, and I saw much less of Bernie Connell from that point.[4]
The relevance does not depend upon those documents also showing knowledge by Kiss of such conduct or having any bearing on Kiss’s conduct after the conversation with Ryan.
[4]Affidavit of Kim Price affirmed 10 October 2023, paragraph [9].
It is not necessary to decide whether the documents would also be relevant to the question of exemplary damages, or even aggravated damages, which are not presently pleaded. On present pleadings Connell’s alleged offending is not pleaded as a basis for exemplary damages sought by Ryan.
Therefore I will order that the defendant make further and better discovery of documents sought in the summons but limiting all categories of documents in paragraphs (b), (c) and (d) to those documents containing allegations of abuse by Connell occurring before or during 1968.
As to the issue of subpoenas, the test is whether the plaintiff can show a legitimate forensic purpose for the documents sought.[5] A fishing expedition, or a subpoena to a third party to see if there are documents that might assist a party’s case, is not permitted.
[5]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 144, [27], citing R v Saleam (1989) 16 NSWLR 14, 18C.
I am satisfied that there is a legitimate forensic purpose to the subpoenas to the NSW Police Force, the NSW Office of the Director of Public Prosecution, and Catholic Church Insurance. Each subpoena seeks documents pertaining to Connell arising out of sexual or physical acts he allegedly committed. The legitimate forensic purpose of such documents is to identify personal circumstances existing at the time the complaint was made to Connell that affected the likelihood that he did not pass on Ryan’s complaint. A subpoena to see whether or not complaints had been made would be a fishing exercise, but a subpoena for documents concerning known complaints about earlier conduct, and seeking those and any other complaints about conduct during or earlier than 1968, in my view are focused on a forensic purpose – that being establishing as a matter of probability, Connell’s failure to report the complaint made to him. I will not set aside the subpoenas but will narrow their form requiring production of documents limited to Connell’s conduct prior to the end of 1968. I will also extend the date for production to Friday 20 October.
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