Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc
[2018] VSC 602
•11 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST
S CI 2014 02411
| BRIAN GERARD STEPHENSEN | Plaintiff |
| v | |
| THE SALESIAN SOCIETY INCORPORATED & ORS (according to the attached Schedule) | Defendants |
S CI 2016 02757
| ANTHONY MICHAEL EASTON | Plaintiff |
| v | |
| THE SALESIAN SOCIETY INCORPORATED & ORS (according to the attached Schedule) | Defendants |
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JUDICIAL REGISTRAR: | Clayton JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 August 2018 |
DATE OF RULING: | 11 October 2018 |
CASE MAY BE CITED AS: | Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc |
MEDIUM NEUTRAL CITATION: | [2018] VSC 602 |
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PRACTICE AND PROCEDURE – Subpoena objection – relevance – insurance documents - privacy of sexual abuse victims and complainants - LG v Brock [2016] NSWSC 323 - ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor [2017] VSC 559.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Popova | Wood Fussell |
| For the Defendant | Ms P Hamilton | Wotton & Kearney |
JUDICIAL REGISTRAR CLAYTON:
This is an objection by Catholic Church Insurance (‘CCI’) and the defendants in both proceedings to two subpoenas filed by the plaintiffs. CCI and the defendants were represented by the same solicitors.
Background
The two proceedings - Stephensen v The Salesian Society Incorporated & Ors (‘Stephensen matter’); and Easton v The Salesian Society Incorporated & Ors (‘Easton matter’) - involve allegations by the plaintiffs that they were sexually assaulted in 1979 and 1980 whilst they were students at Salesian College, Sunbury (‘the School’). Mr Easton alleges sexual assault by Fathers Klep and Fox. Mr Stephenen alleges sexual assault by Father Fox.
In the Stephensen matter, Mr Stephensen alleges that he attended the School which was operated, managed and controlled by the defendants, who had responsibility for supervising staff. The defendants say that the School was under the care, management and control of the School Principal, Jennings, and the Provincial, Cornell, and otherwise do not admit any of the allegations about the care, management, and control of the School. The defendants say that Principal Jennings was responsible for the supervision of Fox between 31 January 1976 and 31 December 1981, but do not admit that any other defendant was responsible for supervision of Fox.
The defendants deny that they placed Fox in a high position of authority, power, care, intimacy and supervision over Mr Stephensen, and deny that the relationship between Fox and Mr Stephensen, who was 12 at the time of the alleged sexual assault, was one of ‘high power, intimacy, trust and responsibility’. The defendants deny that they instructed, authorised or otherwise allowed Fox to administer punishment, including corporal punishment, to Mr Stephensen.
The defendants do not admit that Fox sexually assaulted Mr Stephensen by placing his erect penis into the plaintiff’s anus on multiple occasions whilst ostensibly administering punishment.
The defendants deny that they are vicariously liable for the sexual assaults alleged and deny that they were committed in the course of Fox’s employment, service or agency with the defendants. The defendants deny that at the time of the assaults, Fox was acting as an agent of the defendants for the purposes of the pursuit and furtherance of their undertaking, namely, the education of children at the School and the provision of pastoral and religious instruction and care.
The defendants admit that they owed Mr Stephensen a non-delegable duty of care to exercise reasonable care for his safety. They do not admit that the duty extended to a duty not to assault him or place him in circumstances where he would fear that he would be assaulted, or a duty to protect him from sexual assault by those who taught at the School. They deny that the alleged assaults, injury, and harm to Mr Stephensen were caused by breaches of duty of care owed by the defendants. They deny that they departed from the standard of care owed to such a degree that it constituted gross negligence.
In the Easton matter, Mr Easton alleges that the Salesian Society operated, and had the care, management and control of the School and was responsible for appointed and supervising staff. The defendants admit that the Salesian Society owned and operated the School and say that Principal Jennings, under the direction of the Provincial, had care, management and control of the School. The defendants do not admit that any of them were responsible for appointing fathers and staff to the School, or supervising staff.
The defendants admit that Klep was a teacher at the School from 31 January 1973 to 31 January 1980 and admit that Mr Easton was a boarding pupil at the School in 1979. They deny that they placed Klep in a position of authority, power, care, intimacy and supervision over Mr Easton.
The defendants do not admit that Klep sexually abused Mr Easton by masturbating his penis on three occasions.
The defendants admit that Fox was a teacher whilst Mr Easton was a pupil at the School, but do not admit that Fox abused him by anal penetration. They do not admit that Mr Easton told Principal Jennings that Fox had given Mr Easton a drink which caused Mr Easton to pass out and, when he awoke, he had a sore anus. They do not admit that Principal Jennings knew about abuse committed by Fox on another pupil at the School, or that another pupil was told by Jennings to stay silent about abuse by Fox.
The defendants deny that they failed to take all or any reasonable action in response to knowledge of sexual abuse at the School, and deny that they knowingly or recklessly allowed paedophiles to operate within the School with impunity.
The defendants deny that they are vicariously liable for the acts of Klep or Fox. The defendants deny that they intended to cause, or were recklessly indifferent to causing, injury and harm to Mr Easton. They deny that Principal Jennings engaged in a conspiracy with the defendants to conceal sexual abuse by Klep and Fox.
They deny that they were negligent or that their breach of duty amounted to gross negligence.
They admit that they owed Mr Easton a duty to exercise reasonable care for his safety but deny that this amounted to a requirement to:
(a) remove Klep from the School before 1979; or
(b) remove Fox from the School prior to 1980; or
(c) protect Mr Easton from sexual abuse by those who taught at the School; or
(d) not place Mr Easton in circumstances where he would fear that he would be sexually abused; or
(e) act on knowledge that Fox had abused pupils at the School.
I have detailed the allegations and defences made in detail because the issues in these cases are relevant to the objection taken by CCI and the defendants to the subpoenas issued by each of the plaintiffs.
The Subpoenas
By subpoena dated 5 July 2018 in the Stephensen matter (‘Stephensen subpoena’), Mr Stephensen sought production of:
(a) every document relating to a complaint, allegation, warning, concern or investigation, including internal investigations, of sexual abuse committed by or alleged to be committed by Fox on or before 31 December 1980 (‘Fox complaints and allegations documents’);
(b) any file notes, letters, memoranda, report or other document relating to or recording any disciplinary and/or proposed disciplinary action or internal considerations in respect of Father Fox for sexual abuse or alleged sexual abuse committed or alleged to be committed by him on or before 31 December 1980 (‘Fox disciplinary documents’); and
(c) every document relating to compensation, damages or costs paid in respect of any other victim of alleged sexual abuse of Father Fox committed or alleged to be committed on or before 31 December 1980 (‘Fox compensation documents’).
By subpoena dated 5 July 2018 in the Easton matter (‘Easton subpoena’), Mr Easton sought the above documents, and additionally:
(a) every document relating to a complaint, allegation, warning, concern or investigation, including internal investigations, of sexual abuse committed by or alleged to be committed by Klep on or before 31 December 1979 (‘Klep complaints and allegations documents);
(b) any file notes, letters, memoranda, report or other document relating to or recording any disciplinary and/or proposed disciplinary action or internal considerations against Klep for sexual abuse or alleged sexual abuse committed or alleged to be committed by him on or before 31 December 1979 (‘Klep disciplinary documents’); and
(c) every document relating to compensation, damages or costs paid in respect of any other victim of alleged sexual abuse of Klep committed or alleged to be committed on or before 31 December 1979 (‘Klep compensation documents’).
There are a number of relevant issues in this case:
(a) the role and responsibility of each of the defendants in relation to the operation and management of the School;
(b) the role and responsibility of each of the defendants in relation to the appointment and supervision of staff at the School, in particular Fox and Klep;
(c) whether Fox and/or Klep sexually abused one or both of the plaintiffs;
(d) whether Fox and/or Klep sexually abused other pupils at the School;
(e) whether the defendants, or any of them, knew or ought to have known about the alleged sexual abuse by Fox and/or Klep;
(f) whether, if the abuse occurred as alleged, the defendants, or any of them, are vicariously liable for the actions of Fox and/or Klep;
(g) whether, if the abuse occurred as alleged, the defendants, or any of them, are liable in negligence;
(h) the content of the duty of care owed by the defendants to the plaintiffs;
(i) whether that duty of care was breached.
CCI’s Position
The defendants and CCI object to the subpoenas on the basis that:
(a) they are too broad, oppressive, and vague in scope and amount to a fishing expedition;
(b) some documents sought are not relevant to the proceedings;
(c) privacy of other victims or alleged victims of sexual abuse will be compromised.
CCI says that, by way of example, it is unclear what ‘internal investigations’ refers to or what ‘internal considerations’ means in the schedules to the subpoenas, and this makes the subpoenas too vague to comply with.
Further, the subpoenas make no distinction between documents held by CCI relating to Klep and Fox, and ‘insurance documents’ of CCI. CCI says that, on that basis alone, the subpoenas are oppressive and vague and that there is no issue in the proceeding as to the insurance arrangements involving any party. The insurance arrangements of the defendants are confidential and an application for such documents amounts to an impermissible fishing expedition.
CCI says that documents relating to compensation, damages and costs paid to victims or alleged victims have no relevance to any liability questions before the Court and to the extent that they might identify other potential witnesses, this would amount to an impermissible fishing expedition and would be seeking documents for an improper purpose of identifying potential witnesses, rather than for the forensic use of the documents themselves.
CCI has offered to provide the following documents in response to the subpoena:
(a) documents comprising Klep and Fox’s personnel files;
(b) documents relating to the defendants’ alleged knowledge of Klep and Fox’s alleged offending before 31 December 1979/31 December 1980 (as relevant);
(c) documents recording allegations of abuse committed by Klep and Fox before 31 December 1979/31 December 1980 (as relevant), reported to the defendants.
CCI made submissions about the most appropriate way to ensure that the privacy of other victims and alleged victims is maintained.
The Plaintiff’s Position
Affidavit material filed by the plaintiffs indicates that Klep was convicted in relation to abuse of Mr Easton, amongst others. Fox was found not guilty of counts relating to Mr Stephensen. The affidavit material is silent in relation to whether Fox was charged in relation to Mr Easton.
The defendants do not admit that the alleged abuse occurred. The plaintiffs are each required to prove that, on the balance of probability, the abuse occurred.
The plaintiffs say that material that goes to allegations of abuse by other pupils at the School will assist the plaintiffs to establish that Klep and Fox had a tendency to abuse pupils in the manner alleged by the plaintiffs. Information about other allegations relating to the locations in which abuse occurred, the type of abuse, and the circumstances surrounding the abuse, are relevant to the plaintiffs’ ability to meet their burden of proof. Allegations of abuse both before and after the abuse alleged by the plaintiffs are relevant to the tendency of Klep and Fox to have committed the abuse.
The plaintiffs also argue that documents relating to abuse by Fox and Klep in the possession of CCI will assist in establishing the liability of the defendants, particularly in relation to knowledge they had, or should have had, about the abuse. Documents that show that Fox or Klep abused pupils prior to the abuse alleged by the plaintiffs will be relevant to the liability of the defendants.
The plaintiffs say that the subpoenas are not a fishing expedition. They know that there are other victims of both Klep and Fox by reason of, amongst other things, multiple proceedings in the County Court. In 1994, Klep was convicted of two counts of indecently assaulting youths between 1975 and 1977. In 2005, Klep was convicted of 14 counts of indecent assault against numerous victims at the School. In 2014, Klep was found guilty of 15 further counts ranging from indecent assault to rape for offences committed between 1973 and 1984. Fox was found guilty in the County Court on three charges.
The plaintiffs no longer seek documents in relation to the amount of any claim paid by CCI to alleged victims of Fox and Klep, but maintain that the fact that payments were made is relevant to the knowledge, and therefore the liability, of the defendants.
The plaintiffs say they are entitled to obtain documents in an un-redacted form for two reasons. Firstly, because other victims may be potential witnesses who could assist them in their claims, and they ought to be able to make contact with those people. Secondly, because they have already been in contact with other pupils who allege abuse and need un-redacted access to documents in order to match up the witnesses they are aware of with the documents relating to those individuals. The plaintiffs submit that redacted or pseudonymised versions of the documents will be unsatisfactory because, due to the nature of the offending by Klep and Fox, the allegations by multiple victims are likely to be so similar as to be unable to be matched to any individual.
The plaintiffs say that there is nothing to prevent the disclosure of the names and identifying details of other victims to them and that appropriate orders could be made in relation to the use of any documents at trial. They point to the NSW Supreme Court decision of LG v Brock[1] in which Fagan J found that the plaintiff was entitled to seek ‘to gather and in due course adduce, first, evidence that [the Defendants] received directly from parents and other complainants about [the priest’s] sexually assaulting very young girls’.[2] Fagan J held that the plaintiff was entitled to seek evidence from other complainants about the circumstances of their alleged abuse to establish that ‘reasonably diligent diocesan officials’ ought to have learned what the priest was doing. His Honour held that other complainants may be able to give evidence of complaints made to the defendants before or after the time the plaintiff was sexually assaulted.
[1][2016] NSWSC 323.
[2]Ibid [23].
Consideration
Derham J in ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor[3] set out the principles to be considered. Those relevant to this matter are:
[3][2017] VSC 559.
(a) the party who issues the subpoena must identify precisely and expressly the legitimate forensic purpose for which access to the documents is sought;
(b) the Court must be satisfied that it is ‘on the cards’ or there is a ‘reasonable likelihood’ that the documents will materially assist the case of the party;
(c) a fishing expedition is not a legitimate purpose; and
(d) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking documents to see whether they may be of relevance or assistance.
In assessing the application of the principles to these cases, I am mindful that these cases relates to allegations of historical sexual abuse occurring nearly forty years ago.
The defendants in both cases plead that the lapse of time from when the alleged events took place to the present has a burdensome effect that is so serious that a fair trial is not possible and that the claim should be summarily dismissed or permanently stayed. Further, the defendants plead that the plaintiffs are not entitled to maintain a cause of action against the defendants on the grounds of Laches on the part of the plaintiffs.
In determining whether those defences can or should succeed, the Court will have regard to the prejudice suffered by the defendants due to, for example, the death of witnesses who may have assisted their case, and the loss of documents occasioned by the passage of time.
The existence of any documents which might provide evidence of allegations of sexual abuse by Klep and Fox made by other pupils, or might provide evidence of the knowledge of the defendants of such allegations, will be of particular importance. It will assist the Court in assessing both the claims of the plaintiffs and the defences pleaded.
Complaints and Allegations Documents
I am satisfied that there is a legitimate forensic purpose in seeking the Fox complaints and allegations documents and the Klep complaints and allegations documents. I am satisfied that the plaintiffs have identified precisely the legitimate forensic purpose for which those documents are sought - to establish a tendency on the part of Fox and Klep to commit the abuse alleged, and to establish that the defendants either knew or ought to have known of such abuse because of the fact that it occurred to multiple pupils. These are matters clearly in issue in the proceeding. Documents relating to investigations go to the liability of the defendants, both vicariously and in negligence.
I do not consider the scope of the request to be unduly broad - it is limited in time to the period up to the end of 1979 in the case of Klep and the end of 1980 in the case of Fox, and limited in scope to allegations against Fox and Klep. It is on the cards that documents obtained will materially assist the plaintiffs. The plaintiffs know that there were other allegations of abuse made against Klep and Fox; they are not ‘fishing’ to find out whether there are other such allegations.
CCI and the defendants submit that it is not clear what is meant by ‘internal investigation’. I think that is clear enough - an internal investigation has its ordinary meaning, and would mean any investigation conducted or undertaken internally by CCI, arising from or relating to allegations of sexual abuse.
CCI specifically objects to producing documents ’elated to insurance issues’. It is unclear to me what is encompassed by the phrase ‘relating to insurance issues’ and this is not a category of documents sought in the schedules to the subpoenas. Arguably, any document held by an insurer relates to an ‘insurance issue’. It appears that CCI wants to draw a distinction between documents held by CCI relating to ‘impugned priests’, and insurance documents of CCI. The defendants and CCI say that there is no issue in the proceedings as to the insurance arrangements involving any party, and that insurance documents are confidential and an application to obtain them is an impermissible fishing expedition. Although documents relating specifically to ‘insurance issues’ are not sought in the schedules although it may be that some documents relating to ‘insurance issues’ do fall within the schedules of documents sought.
General insurance documents, including policies of insurance would not, in my view, fall within the schedule of documents sought, confined as those schedules are to documents relating to complaints and allegations, disciplinary matters and claims arising from sexual abuse. However, any insurance documents that relate specifically to coverage for sexual assault, or the exclusion of coverage for sexual assault, may well fall within the schedules. In the absence of having the documents to review, I cannot further determine whether ‘documents relating to insurance issues’ fall within or outside the schedules of documents sought.
Disciplinary Documents
I accept that there is a legitimate forensic purpose in obtaining documents relating to any disciplinary measures. Such documents clearly go to the knowledge of the defendants and the steps they took in response to any complaints. This may be relevant to establishing whether the defendants took any role in supervising Klep or Fox, and whether they breached their duties to the plaintiffs to exercise reasonable care for their safety.
I am satisfied that it is on the cards that the documents will materially assist the plaintiffs’ cases.
For the avoidance of doubt, the documents to be produced are ones that relate to the period of Klep and Fox’s employment at the School up until 1979 and 1980 respectively, but not necessarily documents that were created during that period. Disciplinary documents created in a response to allegations made after 1980, but relating to the relevant periods are to be produced.
Compensation Documents
Documents relating to any claims made or compensation paid, prior to 1979 in relation to Klep and prior to 1980 in relation to Fox, are clearly relevant. If claims were made and compensation paid, such documents would clearly go to the knowledge of the defendants about allegations of sexual assault.
However, documents relating to claims made and compensation paid after 1980, even where they relate to allegations before 1980, are in a different category. The fact that a claim was made, possibly many years later, does little to assist the plaintiffs’ claim that the defendants had actual knowledge of the abuse.
I accept, however, that evidence about other claims made relating to the relevant period, even if those claims were made many years later, are relevant to the allegations that the defendants ought to have known that abuse was occurring. It is likely to be more difficult to establish that a defendant ought to have known of an isolated incident of sexual assault than it would be to establish that a defendant ought to have known of ongoing sexual assaults over an extended period involving multiple pupils.
I therefore am prepared to accept that compensation documents should be produced. I note that the plaintiffs no longer press for settlement or damages amounts to be disclosed, and agree that the amounts of any such payments would not be relevant to establishing that the abuse occurred, or that the defendants are liable. Those parts of the documents that set out settlement or damages amounts should be redacted.
Confidentiality
The plaintiffs seek all documents in un-redacted form and say that they ought to be able to contact potential witnesses to give evidence in their cases. Such evidence might include the nature and circumstances of abuse perpetrated by Fox and Klep, whether any complaints were made by other pupils, and if so, to whom and when.
Disclosing the identity of other complainants could materially assist the plaintiffs by enabling them to call additional witnesses to support their claims.
Weighed against this consideration is that such an undertaking may well amount to a fishing expedition. The plaintiffs do not know whether any of these potential witnesses did make complaints to the defendants during the relevant periods, or would be able to give evidence that would assist. The allegation that Klep and Fox abused multiple pupils can be established without providing the identifying details of those pupils to the plaintiffs so that those pupils could be approached to give evidence., for example by relying on the redacted documents and evidence of the County Court convictions.
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.
The plaintiffs submit that they have already made contact with other pupils who may be witnesses and sought documents to support their accounts. However, there was no affidavit material before the Court in relation to this. In the event that the plaintiffs have had discussions with other pupils who allege abuse by Fox or Klep and who do or would consent to documents relating to them being provided in un-redacted form, the plaintiffs can file affidavit material setting out the names of those persons and the content of the discussions so far as it relates to their consent. If such affidavit material is provided, then documents relating to those persons should be provided in un-redacted form.
I am otherwise not satisfied that documents should be provided in un-redacted form.
I order that the following categories of documents be produced by CCI under the subpoenas:
(a) document relating to a complaint, allegation, warning, concern or investigation, including internal investigations, of sexual abuse committed by or alleged to be committed by Fox on or before 31 December 1980;
(b) document relating to a complaint, allegation, warning, concern or investigation, including internal investigations, of sexual abuse committed by or alleged to be committed by Klep on or before 31 December 1979;
(c) file notes, letters, memoranda, report or other documents, regardless of when created, relating to or recording any disciplinary and/or proposed disciplinary action or internal considerations in respect of Father Fox for sexual abuse or alleged sexual abuse committed or alleged to be committed by him on or before 31 December 1980; and
(d) file notes, letters, memoranda, report or other document, regardless of when created, relating to or recording any disciplinary and/or proposed disciplinary action or internal considerations against Klep for sexual abuse or alleged sexual abuse committed or alleged to be committed by him on or before 31 December 1979; and
(e) documents relating to compensation, damages or costs paid, excluding settlement or damages amounts, in respect of any other victim of alleged sexual abuse of Father Fox committed or alleged to be committed on or before 31 December 1980.
(f) documents relating to compensation, damages or costs paid, excluding settlement or damages amounts, in respect of any other victim of alleged sexual abuse of Klep committed or alleged to be committed on or before 31 December 1979.
(g) subject to any further application by the plaintiffs, within the documents produced, the names of individuals who allege sexual abuse by Klep or Fox are to have a unique pseudonym applied, such unique pseudonym to be applied to each reference to that individual.
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