Stephens v Trustees of the Roman Catholic Church for the
[2023] ACTSC 88
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stephens v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn |
Citation: | [2023] ACTSC 88 |
Hearing Date: | 11 April 2023 |
DecisionDate: | 21 April 2023 |
Before: | McWilliam AsJ |
Decision: | See [70] |
Catchwords: | PRACTICE & PROCEDURE – DISCOVERY – application for further discovery – whether discovery given was inadequate – what constitutes indirect relevance – whether documents sought were a “train of inquiry” or constituted “fishing” – where documents relevant to facts in issue directly and on a tendency basis –whether further discovery would be oppressive – further discovery ordered but limited to prescribed categories PRACTICE & PROCEDURE – NON-PARTY PRODUCTION application to set aside notices for non-party production – where documents relevant to facts in issue directly and on tendency basis – whether production should first be made to defendant for redaction of personally sensitive information – notices varied |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A Civil Procedure Act 2010 (Vic) Legislation Act 2001 (ACT), Dictionary |
Cases Cited: | Better Building Services Pty Ltd v Dyer [2004] ACTSC 65 Carlisle v Filaria Pty Ltd [2003] ACTSC 25 Wang v HMG Capital Pty Ltd [2022] VSC 748 |
Texts Cited: | Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (Research Report, June 2017) |
Parties: | Heath Stephens (Plaintiff) Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn ( Defendant) |
Representation: | Counsel J Ronald ( Plaintiff) D Stretton ( Defendant) |
| Solicitors Judy Courtin Legal ( Plaintiff) Wotton Kearney ( Defendant) | |
File Number: | SC 489 of 2021 |
McWilliam AsJ:
The plaintiff in this personal injury proceeding for damages alleges that over the period 1973 to 1975, when the plaintiff was between four and seven years old, Father Patrick Cusack sexually abused him. Father Cusack was a parish priest who conducted Mass at St Matthew’s Primary School in Page ACT, where the plaintiff was a student. Father Cusack died in 1977.
The plaintiff alleges that in failing to prevent the abuse by Father Cusack, the Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn (defendant) is directly liable in negligence. He further alleges the defendant is indirectly liable, through the principle of vicarious liability. Liability is denied by the defendant.
Applications for determination
There are two interlocutory proceedings presently arising for determination by the Court. The first is the plaintiff’s application filed 8 November 2022, seeking further discovery of documents. The terms of the relief sought in the application were as follows:
Pursuant to r 606 of the Court Procedure Rules 2006 the Defendant make further discovery of documents which have not been disclosed in the proceeding.
The context to the order sought was a letter sent by the plaintiff on 7 October 2022, requesting further discovery by way of a number of proposed categories. It is unnecessary to set those categories out because the plaintiff further revised the position during the hearing of the application to seek the following:
File notes, letters, memoranda, or reports, regardless of when created, relating to a complaint, allegation, warning, concern, or investigation of sexual abuse and or sexual assault committed or alleged to have been committed by Father Patrick Cusack in the period up to 12 August 1977.
The second application for determination was filed by the defendant on 24 March 2023. It seeks to set aside or limit a number of notices for non-party production issued by the plaintiff. The notices for non-party production (NPP) were issued to the proper officer for each of the NSW Commissioner of Police, the Australian Federal Police (AFP), the Trustees of the Christian Brothers and the Trustees of the Sisters of Saint Joseph.
Although the application sought to set aside each of the NPP notices, the parties reached agreement as to three of the notices. The plaintiff agreed to withdraw the notices issued to the NSW Commissioner of Police and the AFP and re-issue them in a more limited form. The defendant agreed not to press its objection to the NPP notice issued to the Sisters of Saint Joseph. Part of the agreement also included the plaintiff consenting to any documents produced in response to the NPP notices to be provided first to the defendant, for consideration as to redactions for sensitive personal information in the first instance, presumably without prejudice to the plaintiff’s right to call for an unredacted copy if he later took issue with any redactions made. As a result, the notice to which there remains an objection is that issued to the Trustees of the Christian Brothers.
It seeks four categories of documents, summarised as follows:
(a) Documents containing academic results, reports and behavioural assessments of St Patrick’s College, Goulburn student, Father Cusack, (ordained as a priest on 21 December 1951).
(b) Documents confirming the appointment, employment, transfer and/or termination of appointment/employment of Father Cusack at St Patrick’s College, Goulburn in a schoolteacher and/or chaplain and/or other capacity.
(c) Documents created at any time containing complaints, issues, warnings, claims made and investigations of Father Cusack for sexual abuse, sexual assault, misconduct and/or physical abuse committed or alleged to have been committed up to and including 1977.
(d) Documents that contain or record disciplinary and/or proposed disciplinary action or internal considerations in respect of Father Cusack for sexual abuse, sexual assault, and/or misconduct committed or alleged to be committed up to and including 1977.
There is a third application yet to be determined. The defendant has filed an application seeking a stay of the proceeding on the basis that it cannot properly investigate the plaintiff’s allegations of abuse. That application was deferred because the parties agreed that the discovery and disclosure processes should be completed before the Court considers whether to stay the proceeding in its entirety.
Should further discovery be ordered?
Under r 606(1)(c) of the Court Procedures Rules 2006 (ACT) (Rules), the Court may make an order for further disclosure if it “considers that a party has not, or may not have, adequately disclosed discoverable documents”. The Court also has power under r 606(1)(g) to make any other order about disclosure or nondisclosure of documents that the court considers appropriate.
It has been recently said that orders for further discovery are “discretionary and are not to be made lightly”: Wang v HMG Capital Pty Ltd [2022] VSC 748 at [24]. In this jurisdiction, Kennett J recently described the power to order further discovery as one to be exercised sparingly: Cossey v Canberra Airport Pty Ltd [2022] ACTSC 70 (Cossey) at [5]. Ordinarily, the affidavit of discovery is conclusive: Mulley v Manifold [1959] HCA 23; 103 CLR 341 at 343–344.
However, there are cases in which the likely existence of undiscovered documents can be inferred. Such an inference may arise, for example, from documents that have been discovered or from material already filed in the proceeding: Cossey at [8], cited by McCallum CJ in Su v Kumal [2022] ACTSC 161 at [19]-[20].
As the defendant submitted, before making any order for further discovery, the Court must have regard to a number of considerations specified in r 606(3):
(a) the principle that disclosure of documents in a proceeding should be limited to disclosure that is reasonably necessary for fairly disposing of the proceeding, or part of the proceeding;
(b) the likely relevance and significance of the documents that may be discovered;
(c) the likely time, cost and inconvenience of disclosing documents or particular documents that may discovered.
Those mandatory matters do not limit other matters to which the Court may have regard: r 606(4).
Broadly, I have approached the task by:
(a) considering what was discoverable in the proceeding;
(b) reviewing what has been discovered;
(c) forming a view about the adequacy of that disclosure, including whether any inference about the existence of documents that have not been discovered should be drawn; and
(d) determining whether orders for further discovery should be made, including the scope of any such order, having regard to the matters set out in the Rules such as relevance and burden.
(a) What documents are discoverable in the proceeding?
The applicable statutory framework and principles
Dealing first with what constitutes a “discoverable document”, a “document” is defined in the Dictionary to the Legislation Act 2001 (ACT) as:
(a)anything on which there is writing; or
(b)anything on which there are figures, marks, numbers, perforations, symbols or anything else having a meaning for people qualified to interpret them; or
(c)anything from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else; or
(d)a drawing, map, photograph or plan.
A document is “discoverable” under r 605(1) of the Rules if it is or was at any time in the “possession” of a party, and it “relates, directly or indirectly, to a matter in issue in the proceeding” (those words being the relevant part of a more extensive definition).
“Possession” is then defined in the Dictionary to the Rules to include custody or power. In Talada Investments v Rovera Scaffolding Pty Ltd [2017] ACTSC 160 (Talada), Mossop J elaborated on the meaning of “power” at [24]:
The concept of “power” for the purposes of discovery has been the subject of considerable discussion. The authorities are usefully summarised by Ward J in Bova v Avati [2009] NSWSC 921 at [359]-[365]. It extends to capture those documents where there is a presently enforceable legal right to examine the document. A person will not have that right if the person is able to inspect the document only if a third person who has control of the document agrees to permit inspection or agrees to refrain from so exercising the person’s control so as to prevent inspection: Taylor v Santos(1998) 71 SASR 434 at 438.
It can be seen from the above recitation of what constitutes a discoverable document that the discovery obligations upon parties are very broad. If there is a piece of paper with writing on it in a party’s possession that relates directly or indirectly to a matter in issue in the proceeding, including one that a party has a legal right to examine from someone else, then that document is discoverable.
There was some debate between the parties during the hearing about what would amount to a document “indirectly” relating to a matter in issue in the proceeding. That stemmed from an early decision on the question of discovery, namely Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63, where Brett LJ stated that it was sufficient if a document may fairly lead a party to a train of inquiry which would either advance a party’s own case or damage that of his adversary. The passage has been applied in this Court, through cases such as Carlisle v Filaria Pty Ltd [2003] ACTSC 25 at [13] (Carlisle), which was then referred to in full by Mossop AsJ (as his Honour then was) in Hobbs v Tym [2015] ACTSC 276 (Hobbs) at [13]:
The scope of documents required to be discovered is as described in the judgment of Gray J in Carlisle at [13] where his Honour said:
13.As far as discovery is concerned, the question is not one of admissibility or indeed of relevance in the Evidence Act 1995 (Cth) sense where the test of relevance is that of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings (see s 55 Evidence Act 1995 (Cth)). There must be a relationship to matters in issue but it does not have to satisfy the relevance test that the Evidence Act requires. As Menzies J said in Mulley v Manifold (1959) 103 CLR 341 at 345 -
Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary.
Similarly, it was said in The Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ that, for the purposes of discovery, a document is relevant if it may, not must, either advance a party's own case or damage the opponent's case, or alternatively would lead to a course of inquiry which would do so. Those tests are wider than the test of relevance that I suspect was being urged on me by counsel for the appellant and, in any event, seem to me to make the documents sought by the plaintiff discoverable in light of the amendment now made to the statement of claim.
Having referred to that passage, Mossop AsJ then immediately drew attention at [14] to r 606(3) of the Rules before stating at [15]:
The critical question appears to me to be whether or not the documents within the classes sought fall within the scope of the test outlined in Carlisle in the light of the facts put in issue by the pleadings in the present case.
The considerations expressed in r 606(3) find their statutory source in s 5A of the Court Procedures Act 2004 (ACT) and the concern of the Court to justly resolve disputes as quickly, inexpensively and efficiently as possible.
The defendant submitted (in essence) that because of the proportionate and efficient management of litigation objectives, the approach to discovery has evolved. It relied on cases such as Volunteer Fire Brigades Victoria Inc v Country Fire Authority [2016] VSC 573, where J Forrest J addressed discovery in the context of equivalent provisions in the Victorian Civil Procedure Act 2010 (Vic) (cited in the extract below as the CPA) stating relevantly at [33]-[35] (footnotes omitted):
33.The approach to discovery has changed markedly in the past half-decade or so. The Peruvian Guano test has been consigned to the dustbin. The CPA now requires a court to cut through the layers of interminable argument and nit picking which had traditionally accompanied discovery contests…
34.The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial. … demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.
35.It is also important to note in the discovery context that there is a continuing obligation under s 26 of the CPA on a party to discover any document of which it becomes aware, that is of any significance in the dispute...
That approach was one with which McDougall J in NSW respectfully agreed in Global Investments Limited v Babcock & Brown Global Investments Management Pty Ltd; DIF III – Global Co-Investment Fund LP v BBLP LLC [2017] NSWSC 729 at [43]. In the course of expressing that view, his Honour indicated that it was reinforced by the existence in NSW of a general prohibition on discovery before evidence which applied in the equity division.
In the Territory, parties have ongoing discovery obligations at common law once an order for discover is made, and r 611 of the Rules also provides for an obligation of continuing discovery. However, these have not been specifically enshrined or modified by statute, such as may be found in s 26 of the Victorian CPA. There is also no practice note or rule dealing with discovery prior to evidence such as that which exists in NSW. I am therefore wary of consigning to the dustbin a test which not only was articulated by the High Court, but has been applied in this jurisdiction, including both before and after the Court Procedures Act and the present iteration of the Rules were introduced.
Although the test in this jurisdiction remains that applied by Mossop AsJ in Hobbs, the evolution of approach for which the defendant agitated is perhaps best applied at the discretionary stage of what orders to make, in terms of the scope of any further discovery, taking into account the mandatory considerations in r 606(3) set out above.
The matters in issue in the present case
The next step is to apply the broad definition to the present case by reference to the pleaded facts in issue. In helpful written submissions prepared by counsel for the defendant, five allegations in the plaintiff’s statement of claim were set out as being relevant to understanding the matters in issue in this proceeding:
(i) From at least 1973 to 1975 the defendant gave Father Cusack “unfettered access” to the school and its students. The defendant has denied the allegation.
(ii) During that period, the plaintiff was sexually abused in various locations including at the plaintiff’s home, in the presbytery and in an annex to the school chapel. The defendant does not admit the allegations.
(iii) By 1973, the defendant knew there was a foreseeable and not insignificant risk of sexual abuse of children by priests and the defendant failed to put in place reasonable systems and precautions which would have prevented the alleged abuse. The defendant denies any breach of duty of care, and denies it knew or ought to have known of a risk of sexual abuse by Father Cusack.
(iv) The defendant is vicariously liable for Father Cusack’s conduct because it placed him in a position of authority, power, trust and intimacy in respect of the plaintiff. The defendant denies the allegation.
(v) The plaintiff is entitled to exemplary and aggravated damages because of his vulnerability at the time of the abuse. The defendant denies the allegation.
That gives sufficient understanding of the scope of the matters in issue for the purposes of this discovery dispute. Whether the plaintiff was abused at all is in issue. The extent of the defendant’s knowledge about Father Cusack’s conduct or potential behaviour is also in issue.
(b) What material has been discovered to date?
The defendant has filed a verified affidavit of discovery on 29 August 2022. The affidavit does not include documents over which it claims privilege and it does not include any documents that deal, refer to, or evidence, complaints of any kind made by other people about sexual abuse by Father Cusack.
The documents that were discoverable but over which privilege was claimed were accepted as being documents which should properly have been included in the affidavit of verified discovery and that will be remedied. That will enable any disputes about the claims for privilege to be properly brought before the Court.
Otherwise, the simple reason for the defendant not discovering any documents relating to prior complaints was that the defendant does not accept that on the case pleaded, they fall within “discoverable documents”.
(c) Was the discovery by the defendant adequate?
The plaintiff gave five reasons why complaints made by other people and what the defendant knew about those complaints at the time related, directly or indirectly, to a matter in issue in his proceeding.
First, the defendant has not admitted that the abuse by Father Cusack occurred in respect of the plaintiff. The evidence of other complaints of abuse against young children, and the manner and timing of the abuse, particularly where those complaints of abuse have been accepted, may assist the plaintiff to prove the fact of abuse against him by way of tendency reasoning.
Second, the knowledge of the defendant at the time is relevant to liability directly, in terms of foreseeable risk and indirect vicarious liability.
Third, the evidence of the complainants, and what the defendant knew or did in response to complaints or suspicions at the time, is relevant to the systems that the defendant had in place at the relevant time, which is in turn relevant to establishing whether a duty of care was breached.
Fourth, the plaintiff argued the knowledge of complaints made by other people may be relevant to any award of aggravated or exemplary damages.
Fifth, the evidence is at the very least relevant to interlocutory issues arising on the question of whether the Court should grant a permanent stay due to the effluxion of time meaning that the defendant has difficulty investigating the allegations.
The plaintiff argued that it has seen material sufficient to give rise to the inference that documents which relate to the above matters in issue are likely to exist, which have not been discovered.
First, the plaintiff has in its possession a number of documents created during the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). They include a public data survey entitled Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (Research Report, June 2017), which states at 129 that in the Catholic Archdiocese of Canberra and Goulburn, “67% of claimants alleged that the incidents of child sexual abuse occurred in the period from 1970 to 1989 (inclusive).” More significantly, the plaintiff has a witness statement given by the current archbishop of the Archdiocese of Canberra and Goulburn on 4 November 2016 for the purposes of the Royal Commission, which refers to a complaint made in 1993 by a woman, who:
…reported that Fr. Cusack had abused her in 1975 and 1976 when she was in Year 5 and 6. Her claim was accepted, the matter became public, and since then a further twenty people have come forward. The Archdiocese accepts that each claimant was abused.
Second, the plaintiff has material produced on subpoena by Catholic Church Insurance Limited. It includes statements of claim by various complainants and victim statements. The allegations in the statements of claim repeatedly include an allegation that by 1957 the same defendant as the one sued here was aware that Father Cusack had sexually assaulted a parish member, referred to in other claims as a female child, and an allegation that the defendant failed to remove Father Cusack from the Archdiocese or take any action.
Third, there is a victim impact statement also produced under subpoena, where the person disclosed that she was abused at St Matthew’s Primary School by Father Cusack in 1975 and 1976. She went on to say:
I unknowingly disclosed the abuse to my father midway through Grade 4… I was not aware at the time that dad had gone straight to the school after our discussion and spoken with the [Principal]. He reported exactly what I had told him and said he did not want me left alone with Fr. Cusack ever. …
The plaintiff contended that having established the documents sought related to matters in issue and that it was likely further documents existed which had not been produced by the defendant, it was appropriate to order further discovery for the category of documents relating to any complaint, allegation, warning, concern or investigation of sexual abuse or assault by Father Cusack in the period up to 12 August 1977.
The defendant argued that no tendency on the part of Father Cusack or system in respect of the defendant has been pleaded. Speculation that the defendant may have tended to act in a certain way is insufficient. No notice has been served under s 97(1) of the Evidence Act 2011 (ACT) (Evidence Act). Even if tendency, practice or systems are in issue, the proposed category of documents sought was not drafted so as to capture only documents that are relevant to a fact in issue. It is not the Court’s task, or the defendant’s, to redraft proposed categories.
I accept that the documents sought relate to matters in issue, both directly and indirectly. The plaintiff has pleaded that sexually abusive conduct by Father Cusack occurred. He will no doubt lead evidence from his direct experience, but he would also be entitled to lead evidence to support that fact on a tendency basis through other sources. The plaintiff does not have to plead the specific means by which the fact in issue will be proved (that is, through tendency evidence) in order to demonstrate that the material relates to a matter in issue. Nor is he required to issue a s 97 notice under the Evidence Act prior to even seeing the evidence itself that has yet to be discovered. It is apparent that the defendant has taken a limited view of what material may be significant to the question of whether the abuse itself occurred and that has informed what it perceived its discovery obligations to be.
Moreover, the category of documents extending to what the defendant had been told or otherwise knew from other complainants raising concerns about Father Cusack relates to a matter in issue independent of the tendency line of reasoning.
The defendant argued that “prior complaints arising out of related but different circumstances may not, in general, be discoverable”, especially “in the absence of an appropriate particular”, relying on comments to that effect in North-West Supermarkets Pty Ltd v The Leasing Centre (Aust) Pty Ltd [2015] VSC 212 at [53]-[54]. The context in which the comments were made was somewhat different, in that his Honour was considering a case that had already been run at trial. There was an allegation of a failure to discover documents during the trial. The party alleged there was a failure to produce documents about how other people had construed a rental lease clause. The failure meant the decision at first instance should be set aside.
What Riordan J said in that case was:
53.I do not want to be read as saying that, unless there is a specific particular, a party is not obliged to discover documents which are plainly adverse to its case. However, without some specific point of relevance, prior complaints arising out of related but different circumstances may not, in general, be discoverable. Plainly each case will be determined by reference to its own facts and pleadings but I note the following considerations of the relevance of prior complaints by courts.
His Honour then proceeded to give examples where the relevance of prior complaints had been examined by the courts. In each of the examples cited, the relevance of prior complaints had been rejected. However, as Riordan J was careful to point out, general propositions divorced from their factual context cannot really be of much assistance. If this were a slip and fall personal injury case, documents disclosing prior complaints made by other people about a dangerous or slippery area on the defendant’s property would plainly be relevant to whether the defendant knew about a risk, and what the defendant did in response to a known risk. That is a matter separate from establishing that the risk in the particular case materialised through tendency reasoning.
In the absence of an appropriate particular (as is the case here), it remains for the court to assess whether prior complaints made by other people are material to the claim. Here, the plaintiff in bringing this application has identified what forensic purpose the category of documents sought has. It is important to recognise that complaints made for the first time in 1993, or any time after Father Cusack died, do not of themselves say anything about the knowledge the defendant may have had about Father Cusack’s conduct in 1973. However, similar conduct that was alleged to have occurred in close proximity in time may well be relevant on a tendency basis, particularly if the complaint is one that the defendant accepted as having occurred as was evidence in the Royal Commission.
Whether the documents sought are described as relating to proof of the abuse itself, or knowledge of the risk of abuse, or the defendant’s practice in dealing with the risk, I do not consider that what is sought by way of further discovery is peripheral to any of those matters.
In any event, the defendant’s evidence was to the effect that none of the material relating to other complainants had been investigated at all for its significance to the matters in issue in this proceeding. The simple reason for that was that it did not view them as falling within the “discoverable documents”.
It is understandable why the defendant may not have initially appreciated, or accepted, that the material sought fell within the width of discoverable documents. There is force in the defendant’s point that it cannot be the case every time an allegation of sexual abuse by a priest is made that the defendant is to discover the complete history of every document relating to complaints made by other people.
In that regard, I agree that it would be both prudent and preferable for the plaintiff to amend the pleading to particularise the knowledge aspect of his claim with greater precision. But I do not think that the lack of particulars is fatal to the present application here.
There does appear to be a known category of documents likely to be in existence which has been expressly excluded by the defendant. I am satisfied that such category relates both directly and indirectly to matters in issue in a personal injury negligence claim on the existing pleading as it stands. That leads to the conclusion that the defendant’s discovery to date has been inadequate.
(d) What orders for further discovery should be made?
The defendant submitted that there was a requirement to show a connection between the class of documents sought and a fact in issue, and where a class is specified in some other manner than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are relevant to a fact in issue. The defendant relied upon Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22].
The defendant also raised concerns about what is reasonably necessary for fairly disposing of the proceeding, arguing that the documents sought were impermissible fishing and that discovery would give rise to oppression. The defendant argued that a bare allegation in a statement of claim does not entitle the plaintiff to discovery, relying on Hobbs at [23].
The full force of those submissions was somewhat overtaken by the plaintiff’s redrafting of the particular category of documents for which further discovery was sought. The concerns have nevertheless been taken into account and addressed in what follows.
If the Court found that the pleaded claim sufficiently advanced a case that the school had suspicions or received complaints of sexual abuse which it failed to act upon, notwithstanding the lack of particularity in the pleading, and if it was further held that discovery had been inadequate, then the defendant submitted that further orders for discovery should be limited to:
· documents recording that any staff member of St Matthews knew, suspected or received a report of sexual abuse by Father Cusack before 1977; and
· documents recording actions taken by the school in or before 1977 in response to any such knowledge, suspicion or report.
The defendant’s proposed limit to what staff members at the school knew would not fully encapsulate the documents relevant to the knowledge of the defendant. The statements of claim in evidence contain allegations that people outside St Matthew’s school were aware of allegations of sexual abuse by Father Cusack before 1973. Where Father Cusack is alleged to have abused children prior to working at St Matthew’s school, the limited form of discovery proposed by the defendant would exclude documents recording what those for whom the defendant is responsible knew (or ought to have known or appreciated) in relation to those complaints.
However, equally what is sought by the plaintiff is too broad. By the use of the words “relating to” and lack of any time limit for the category as a whole, it would capture a file note written in 2021 (after this proceeding was commenced) about what steps a staff member for whom the defendant takes responsibility intended to take to address a different complaint of abuse allegedly committed by Father Cusack while he was alive.
The further discovery to be ordered must therefore attempt to strike a balance between the two positions, with a particular focus on capturing only the documents that are material to the plaintiff’s claim and to limit the discovery process to one that is manageable and while significant, not oppressive or disproportionate. I will order further discovery limited to the following categories:
(a)Documents constituting a complaint or report (or notice of such complaint or report) of sexual abuse and or sexual assault committed or alleged to have been committed by Father Patrick Cusack in the period up to his death 1977, whether informal or formal and regardless of when created.
(b)Any document created in the period up to 12 August 1977 which:
(i)records communications of, or about, any complaint, report or suspicion of sexual abuse or assault to or between any staff member of a school or parish with which Father Patrick Cusack was associated; or
(ii)records a response (whether act or omission) to any such complaint, report or suspicion taken by a school or parish.
Should the notice for non-party production issued to the Trustees of the Christian Brothers be set aside?
The NPP notice issued to the Trustees of the Christian Brothers seeks records in respect of Father Cusack’s time as a student, and then schoolteacher and/or chaplain at St Patrick’s College in Goulburn, prior to his time in Canberra.
The defendant argued the categories sought were irrelevant and constituted “fishing,” but accepted that the outcome of this application would largely depend upon the findings made in relation to the arguments on the plaintiff’s application for further discovery. This is partly because of the way r 660 of the Rules is framed, which requires the registrar to issue (upon request of a party to a proceeding) a notice requiring a person who is not a party to the proceeding to produce for inspection a document “relating to a matter in issue in the proceeding” and in the person’s possession and that the person could be required to produce at the trial of the proceeding.
Rule 660(2) of the Rules provides that the applicant may not require production of a document if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
The application to set aside the NPP notice is brought pursuant to r 663 of the Rules, sub-rule (2) of which permits the court to make the orders it considers appropriate on such an application.
In recognition of the fact that the recipient of the notice is not a party to the litigation, the applicable test is different. The defendant submitted the requirements applying to a NPP notice were the same as the principles applying to establishing legitimate forensic purpose in respect of subpoenas, that being whether the documents sought to be produced will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely such documents will so assist: Secretary of the Department of Planning, Industry and Environment v Blacktown City [2021] NSWCA 145 at [65].
Non-party production is not equivalent to discovery against a stranger to the litigation: Better Building Services Pty Ltd v Dyer [2004] ACTSC 65 at [11]. The notice must specify with reasonable particularity the documents which are required to be produced; it should not seek all documents relating to a particular subject matter: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573.
It is perhaps useful to also keep in mind the fundamental differences between a subpoena and a notice to produce. First, a notice to produce is a request not an order. Second, documents are produced to the party requesting them and not to the court. There is no right or opportunity for the opposing party to inspect the documents that are produced in response to a notice to produce. That is because copies of documents obtained pursuant to a notice to produce are regarded as having come into existence for the purposes of litigation, meaning privilege attaches to those documents, and they are not available on discovery to the other party: see Matuska v Ali (1987) 71 ACTR 23 at 28.
Those differences mean that the notice for non-party production procedure is not really appropriate here. It is unclear why the plaintiff did not simply seek leave to issue a subpoena. However, the recipient of the notice has not insisted on a subpoena being issued and the plaintiff has agreed to permit the documents requested to not only be provided to the defendant, but to be produced directly to the defendant first, so as to permit the defendant to consider any claims for privilege. In light of the work arounds agreed by the parties, I will not set the notice aside. In any event, the same limits as those I have made in relation to the further discovery are appropriate for the NPP notice issued to the Trustees of the Christian Brothers. They achieve a sufficient level of specificity so as not to trespass into general discovery from a non-party.
Conclusion
For the above reasons, further discovery will be ordered, but not to the extent sought by the plaintiff. The notice for non-party production issued to the Trustees of the Christian Brothers will not be set aside, but the documents sought under it will be similarly limited. In those circumstances, where each party has had some success, I consider it appropriate for the parties to bear their own costs of the respective applications.
The following orders are made:
(1) Pursuant to r 606 of the Court Procedures Rules 2006, the Defendant is to provide further discovery of the following categories of documents:
(a)Documents constituting a complaint or report (or notice of such complaint or report) of sexual abuse and or sexual assault committed or alleged to have been committed by Father Patrick Cusack in the period up to his death in 1977, whether informal or formal and regardless of when created.
(b)Any document created in the period up to 12 August 1977 which:
(i) records communications of, or about, any complaint, report or suspicion of sexual abuse or assault to or between any staff member of a school or parish with which Father Patrick Cusack was associated; or
(ii) records a response (whether act or omission) to any such complaint, report or suspicion taken by a school or parish.
(2) Pursuant to r 663(2) of the Court Procedures Rules 2006 the terms of the notice for non-party production issued to the Trustees of the Christian Brothers are limited to production of the following:
(a)Documents constituting a complaint or report (or notice of such complaint or report) of sexual abuse and or sexual assault committed or alleged to have been committed by Father Patrick Cusack in the period up to his death in 1977, whether informal or formal and regardless of when created.
(b)Any document created in the period up to 12 August 1977 which:
(i) records communications of, or about, any complaint, report or suspicion of sexual abuse or assault to or between any staff member of a school or parish with which Father Patrick Cusack was associated; or
(ii) records a response (whether act or omission) to any such complaint, report or suspicion taken by a school or parish.
(3) Each party is to pay its own costs of each application in proceeding.
(4) Any documents produced under a notice for non-party production are to be produced to the defendant’s solicitors in the first instance, and identifying details of alleged victims of sexual abuse and their families are to be redacted by the producing party or by their solicitors. Subject to any claims for privilege, the defendant is to provide the redacted versions to the plaintiff within 14 days of receipt. The parties are forthwith to notify the producing party or parties of this order.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 21 April 2023 |
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