Sexton v Trustees of the Christian Brothers (Ruling No 1)
[2025] VCC 365
•2 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
INSTITUTIONAL LIABILITY LIST
Case No. CI-23-05440
| KEVIN SEXTON | Plaintiff |
| v | |
| TRUSTEES OF THE CHRISTIAN BROTHERS | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 March 2025 | |
DATE OF RULING: | 2 April 2025 | |
CASE MAY BE CITED AS: | Sexton v Trustees of the Christian Brothers (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 365 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Redaction of discovered documents – scope of further discovery
Legislation Cited: County Court Procedure Rules 2018; Legal Identity of Defendants (Organisational Child Abuse) Act 2018
Cases Cited:Gunns Limited v Marr [2008] VSC 464; Stephensen v The Salesian Society Incorporated [2018] VSC 602; Lenscak v Trustees of the Marist Brothers (No 2) [2021] VSC 49; PG v State of Queensland [2023] QDC 109; Erenshaw v The State of Victoria [2024] VSC 626; Di Cesare v Bird [2021] VSC 25; Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573; Orman v Gobbo (No 2) [2025] VSC 110.
Ruling: Application regarding redaction of documents dismissed.
Application regarding scope of further discovery dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R C Gordon | Rightside Legal |
| For the Defendant | Ms C Sluiter | Carroll & O’Dea Lawyers |
HER HONOUR:
Introduction
1The two applications determined in this Ruling arise out of a Summons of the plaintiff dated 7 March 2025, which was heard on 11 March 2025.
2At the Summons hearing, four of the plaintiff’s applications were granted:
(a) The Court vacated the trial date of 25 March 2025 and relisted the proceeding for trial before a judge and jury on 7 July 2025 with an estimate of 10 days.
(b) The Court granted the plaintiff leave to file and serve a Further Amended Statement of Claim no later than 18 March 2025.
(c) The date by which the parties were to file and serve interrogatories for the examination of the other party was extended to 22 April 2025.
(d) The date by which the plaintiff was to file and serve any notice of Intention to adduce Hearsay evidence or notice of intention to adduce Tendency evidence was extended to 26 May 2025. Consequently, the date by which the defendant was to object to any notice of intention to adduce Hearsay evidence or Tendency evidence was extended to 9 June 2025.
3Leave was granted to the defendant to file and serve a Defence to the Further Amended Statement of Claim within 30 days of service of the Further Amended Statement of Claim.
4In addition, the Court granted leave to the plaintiff to amend the Summons to include the following:
(a) An issue regarding the redaction of discovered documents at pages 28 to 34 (inclusive) of “Exhibit LM-1” to the affidavit of Laird Macdonald affirmed on 25 February 2025 (“redaction issue”).
(b) The scope of further discovery relating to documents described as the “Webster complaint files” (“Webster complaint files issue”).
5For the reasons that follow:
(a) The plaintiff’s application in relation to the redaction issue is dismissed.
(b) The plaintiff’s application in relation to the Webster complaint files issue is dismissed.
Background
6The plaintiff, Mr Sexton, is pursuing a claim for damages against the Trustees of the Christian Brothers (referred to as “the Christian Brothers” for convenience), concerning sexual abuse he alleges occurred while he was a minor in 1966, and whilst he was a student at St Joseph’s College Junior School in Pascoe Vale.
7This litigation commenced in October 2023 in the Common Law Division – General List and was transferred to the Common Law Division ꟷ Institutional Liability List in February 2024.
8The original Statement of Claim was dated 4 October 2023. In that Statement of Claim, the plaintiff alleged that he was abused by Brother Weston in 1963. In a defence dated 10 February 2024, the defendant did not admit the alleged abuse.
9The defendant agreed to file and serve a further affidavit of documents by 14 March 2025.
10The plaintiff filed a Further Amended Statement of Claim on 17 March 2025 in which he alleges that he was abused by Brother Weston in 1966 rather than in 1963 as originally pleaded.
11In paragraph 20 of the Further Amended Statement of Claim the plaintiff alleges:
“The risk of injury and harm to the Plaintiff from sexual abuse by Weston was, or ought to have been, foreseeable by the Christian Brothers (by nomination, the Defendant) in light of:
i. The incidents of sexual abuse by Weston against students at the Parade College Preparatory School in Alphington in 1964 while being the deputy Principal of the school; and
ii. The complaint of sexual abuse of a student at St Joseph’s Technical College, Abbotsford in or around 1961/1962, which said complaint was made to the headmaster at the time, Brother Webster. Brother Webster himself had abused children St Augustine’s Orphanage in Highton in the 1950’s.”
12The defendant has not filed a Defence to the Further Amended Statement of Claim. The Defence is not due until 17 April 2025.
13It is assumed, for the purpose of this Ruling, that, consistent with the current Defence filed, the defendant will not admit the alleged abuse in any further Defence filed.
Redaction
The Legal Principles
14The relevant legal principles can be summarised as follows:
· Rule 29.01 of the County Court Procedure Rules 2018 (“the Rules”) specifies that discovery covers the following documents:
§ documents on which a party relies;
§ documents that adversely affect the party’s own case;
§ documents that adversely affects another party’s case;
§ documents that support another party’s case.
· Rule 29.02 of the Rules requires a party to a proceeding to discover any document which is or has been in that party’s possession which falls under Rule 29.01 - in other words, documents which relate to any question raised by a pleading.
· Rule 29.02 of the Rules requires the party making discovery to produce documents for inspection to the other party when requested.
· Rule 29.04(d) entitles a party to state in an affidavit of documents any grounds of privilege which the party seeks to assert in respect of a document discovered by it.
15As a general proposition, a party is required to produce the whole of a document discovered by it for inspection.
16The cases[1] have recognised the long-established practice of a party redacting or masking parts of documents where there is a legitimate basis for doing so.
[1] Gunns Limited v Marr [2008] VSC 464 per Kaye J at [30]; Stephensen v The Salesian Society Incorporated [2018] VSC 602 (“Stephensen”); Lenscak v Trustees of the Marist Brothers (No 2) [2021] VSC 49 (“Lenscak”); PG v State of Queensland [2023] QDC 109; Erenshaw v The State of Victoria [2024] VSC 626 (“Erenshaw”)
The documents
17The documents in question are:
(a) a document described as an additional statement to Towards Healing (undated, but believed to have been emailed on 12 July 2013);
(b) a document headed “Towards Healing Contact Report”, dated 14 August 2013;
(c) a statutory declaration signed by the sister of the unidentified complainant.
18It is convenient to deal with the documents in the following way:
(a) the two statements from the unidentified complainant;
(b) the statutory declaration of the unidentified complainant’s sister.
19The first statement of the unidentified complainant was undated. It had an annotation at the bottom of the second page which read “Emailed on 12 July 2013” – the identity of the author of the email and the recipient of the email are not apparent on the document. The document was headed “Additional Statement by xxxxx or (query “for”) Towards Healing”. This document appears to have been written by the unidentified complainant.
20In this document, the unidentified complaint said, inter alia:
“I have carried this shame for over 50 years….. “
“Whenever I think about my past or when there is news about the antics of the church on TV
I go into a fit of deep depression, even though I was THE VICTIM
And never guilty of any of this,…”
“… I have been in discussions with some legal people about all this
And really believe the story should be told at the enquiry into the Church’s lack of action and the hiding of all of all (sic) this,
I am currently await (sic) on their advice and when they can fit me into the court system I guess as a witness…”
“I migrated to Perth in Nov (sic) 1979 to get away from all the innuendo…..”
21The second statement of the unidentified complainant was dated 14 August 2013 and was headed:
22In this statement it is asserted the unidentified complainant endured emotional and sexual abuse from Brother Weston at St Joseph’s Technical College Abbotsford between approximately 1959 and 1962.
23The unidentified complainant confirmed that he had not made a complaint to the Christian Brothers previously in respect of the abuse.
24The unidentified complainant asserted that he:
“…. raced off in tears to Br Webster who was in the nearby classroom. Br Webster who was the headmaster at the time took xxxxx to his office and xxxxx recounted to him what had happened…”
25The document included the following paragraphs:
“Privacy
xxxxx acknowledges that information provided to the Professional Standards Resources Group is to enable it to implement the principles and procedures of the Catholic Church as outlined in the document “Towards Healing” in dealing with complaints of abuse by Church personnel. He also acknowledges that the information provided by him is collected, held, used, corrected, disposed of or transferred in accordance with the National Privacy Principles and the Privacy Act 1988 as amended.”
26This document appears to have been prepared by someone other than the unidentified complainant himself, as a result of contact the unidentified complainant had with a representative of the Towards Healing response/program. Despite this, it was presumably adopted by the unidentified complainant as it was signed by him.
27The third document is a statutory declaration dated 15 April 2013 signed by a person who identified herself as the sister of the unidentified complainant. There is no reference to abuse allegations in the document. The author of the document refers to observing:
“… alarming changes to my brother’s life during his time at St Joseph’s College Abbotsford.”
28The redactions applied to the three documents were the unidentified complainant’s name, address, telephone number and date of birth as well as the surname of the unidentified complainant’s sister.
The issues in dispute
29The three redacted documents were disclosed in the defendant’s affidavit of documents dated 17 May 2024. I have not been provided with the defendant’s Affidavit of Documents but have inferred that the defendant has asserted that it is entitled to redact parts of the documents in dispute.
30The plaintiff’s legal team inspected the redacted documents shortly after receipt of the defendant’s affidavit of documents. There was no explanation as to why the issue relating to redaction of the documents was not ventilated earlier.
31The plaintiff, by way of letter dated 26 November 2024, asked the defendant’s solicitors to identify the name of the complainant in the redacted documents.
32The defendant’s solicitors, in a letter dated 24 February 2025, informed the plaintiff that they declined to provide the plaintiff with the name of the complainant identified in the documents.
33Mr Sexton alleges that the Christian Brothers were not entitled to redact the unidentified complainant’s name, or the name of his sister, and seeks to identify him so that he might be called as a witness in the upcoming trial. Mr Sexton also seeks the identity of the unidentified complainant’s sister so she might be called as a witness at the upcoming trial.
34The plaintiff alleges that the unidentified complainant demonstrated a willingness to make his story public and that it could be inferred that he would be prepared to assist the plaintiff in the current case.
35The plaintiff also alleges that the sister’s document should be provided in an unredacted form because there was nothing in that document which suggested that she was the victim of any alleged abuse and there would be no prospect of potential re-traumatisation of her.
36The plaintiff also submitted that provision of the unredacted documents is necessary to establish that a complaint had been made to Brother Webster about Brother Weston’s behaviour. It was said that such a report would constitute a complaint to the incorporated body under the Legal Identity Act[2] and would therefore be deemed to be knowledge of the incorporated body.
[2] Presumably the Legal Identity of Defendants (Organisational Child Abuse) Act 2018
37The Christian Brothers oppose the application and assert the redaction of the identities in the documents was justified. The defendant said the Court should adopt the cautious approach as emphasised in cases such as Erenshaw,[3] Lenscak,[4] and Stephenson.[5]
[3] [2024] VSC 626
[4] [2021] VSC 49
[5] [2018] VSC 602
38The defendant submitted there was no evidence about the nature of the current relationship between the unidentified complainant and his sister. It was said that there was a potential for harm to the unidentified complainant by allowing his sister to be identified which could, in turn, indirectly identify him.
Findings
39For the reasons set out below I agree with the Christian Brothers’ submissions and will not order that unredacted copies of the three documents be provided.
40The two statements completed by the unidentified complainant were produced with the expectation of privacy.
41The plaintiff submitted that the documents show a willingness of the unidentified complainant to make his story public. It was said that it could be assumed that the unidentified complainant intended to have his complaints become known to the public.
42I reject that submission. I find that the documents show that the unidentified complainant was prepared to give evidence at an inquiry such as the Royal Commission. The unidentified complainant’s comment regarding an “enquiry” cannot be and should not be reinterpreted in the way intended by the plaintiff.
43It is significant to note that the unidentified complainant is not a party to the proceedings. He has not been put on notice of the application and has not had the opportunity to state his position or advocate on his behalf.
44The authorities make it clear that in institutional liability cases, particularly where a complainant is unidentified, a cautious approach should be adopted in relation to disclosure of that person’s identity.
45In particular, in Stephenson, JR Clayton (as she then was) said:
“Further, and most importantly, disclosing the identity of other potential victims would involve a significant breach of the privacy of those persons. I am not satisfied that the imposition of a confidentiality regime at trial is sufficient protection for individuals who may suffer unknown and unknowable repercussions from being unexpectedly contacted by the plaintiffs or their lawyers and asked to revisit what is likely to be a traumatic episode in their lives. There may be individuals who made complaints to CCI but did not go to the police, did not participate in any criminal prosecutions and have not taken steps at common law. There may be very good reasons why they have taken these steps. They have an expectation that the details of their allegations provided to CCI will be kept confidential. Whilst their evidence may be of assistance to the plaintiffs, I am not persuaded that the plaintiffs are unable to prosecute their cases without it.”[6]
[6] Stephensen [2018] VSC 602 at para [54]; adopted and applied in Erenshaw [2024] VSC 626 at para
[40]
46There are additional protections and safeguards concerning the identities of individuals who have made complaints regarding child sexual abuse. As noted in Erenshaw,[7] sexual abuse is often traumatic and underreported and disclosure of identifying details of individuals who raise complaints or reports of previous child sexual abuse may itself be harmful to that individual.
[7] [2024] VSC 626 at para [42]
47In this case, the Court is partially informed by the content of the unidentified complainant’s two statements in which there are references to his sense of shame and depression.
48Weighing the competing interests of the plaintiff and the unidentified complainant, I find that it is undesirable to disclose the identity of the unidentified complainant.
49In relation to the unidentified complaint’s sister’s statutory declaration, it is relevant that there are no assertions relating to the alleged sexual assault. The document was produced by the unidentified complainant to the Professional Standards Resources Group/Towards Healing in support of his application. It can be assumed that the unidentified complainant produced this document with the expectation of privacy.
50By providing an unredacted version of the statutory declaration, I accept the defendant’s submission that the identity of the unidentified complainant could be revealed. It is undesirable to use a backdoor way of obtaining the complainant’s identity in such a way.
51The plaintiff has been provided with documents which assert that a complaint about Brother Weston was made to Brother Webster prior to 1966.
52The plaintiff’s application for unredacted versions of the three documents is dismissed.
Webster Complaint files
The Legal principles
53For a document to be discoverable, it must be relevant to the issues in dispute. Discovery must be focused on the central issues in the proceeding rather than matters that are peripheral.[8]
[8]Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573 at [34]; Orman v Gobbo (No 2) [2025] VSC 110 at [6]
54At this stage, the Court is not concerned with issues of admissibility – questions of admissibility will be dealt with at trial.
55It is sufficient that the discovered documents may lead to a train of inquiry in relation to a fact in issue, or may be used in cross-examination of witnesses.
The issues in dispute
56The parties were in dispute about the discovery of complaint files relating to Brother Webster from the date of the alleged abuse onwards.
57Without conceding whether various documents were strictly discoverable, the defendant has agreed to provide additional documents which include complaint files relating to Brother Webster prior to the alleged abuse.
58The plaintiff maintained he was entitled to discovery of complaint files relating to Brother Wester post-dating the alleged abuse.
59The defendants did not concede these documents were discoverable.
60The plaintiff submitted that the provision of documents relating to Brother Webster were relevant to the issues in dispute. It was asserted that if there was evidence that Brother Webster sexually abused children after the alleged abuse, such evidence could be used to establish that the defendant’s system had failed.
61The plaintiff also submitted that the documents may be relevant to aggravated or exemplary damages.
62The plaintiff relied upon the decision of Di Cesare v Bird[9]- a decision of Keogh J. In that case, a plaintiff alleged that he had been sexually abused by a priest named Claffey. The plaintiff sought discovery of documents relating to Claffey up to and after the date of the alleged abuse.
[9][2021] VSC 25
63The defendant argued that the documents sought could not go to issues of foreseeability, knowledge or any assessment of risk.
64The defendant said that the documents could not be relevant to negligence because negligence relates to the “steps that could have been done to prevent the abuse”.
65It was submitted by the defendant that the question of whether the defendant was negligent is not a retrospective question and that the documents were not relevant to any matter before the Court, including breach, foreseeability, knowledge, risk, negligence or aggravated or exemplary damages.
Findings
66The plaintiff’s reliance on Di Cesare v Bird[10] is misconceived. That case was concerned with documents relating to an alleged offender, Claffey, and possible other victims of Claffey prior to or subsequent to the date upon which the plaintiff alleged he was abused.
[10] Ibid
67Keogh J found that documents relating to incidents of abuse by Claffey prior to the date of the alleged abuse may be relevant to the seriousness of the risk of harm to children from him and the probability of that risk eventuating.
68As to complaint documents against Claffey subsequent to the abuse, Keogh J found it was less clear whether these documents were relevant to the question of damages. Discovery of that class of documents was not ordered. Keogh J said it would be appropriate for the class or category of documents sought be redrafted.
69This is a different case. In this case, the plaintiff is seeking documentation relating to a person other than the alleged offender and for a period after the alleged abuse of the plaintiff took place.
70There are a number of concerns I have in relation to the documents. First, the category of documents is broad. The plaintiff has not identified with any precision the documents sought.
71Second, it appears on the face of it that this may be a fishing expedition given the broadness of the documents sort. The days of allowing searches for a smoking gun are gone.[11]
[11]Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573 at [36]
72The plaintiff has not established a legitimate forensic purpose in relation to the documents.
73The documents sought appear to go to a peripheral issue rather than a real issue to be determined at trial.
74I am not satisfied that the plaintiff has established that any post 1966 material relating to Brother Webster is relevant.
75The application for further discovery of the Webster files is dismissed.
Disposition
76I will hear from the parties on the question of costs.
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