Valentini (a pseudonym) v Trustees of the Marist Bros (Costs)
[2022] VSC 550
•16 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2020 01513
| FOSTER VALENTINI (a pseudonym) | Plaintiff |
| v | |
| TRUSTEES OF THE MARIST BROTHERS | Defendant |
---
JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 May 2022 |
DATE OF JUDGMENT: | 16 September 2022 |
CASE MAY BE CITED AS: | Valentini (a pseudonym) v Trustees of the Marist Bros (Costs) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 550 |
---
PRACTICE AND PROCEDURE – Costs – Indemnity Costs – Application by plaintiff for indemnity costs as sanction – Alleged breaches of overarching obligations – Civil Procedure Act 2010 (Vic) ss 9, 16, 18, 21, 26 – Alleged breaches by defendant by its conduct – Pleading without proper basis – Inadequate discovery – Disruption to trial by withdrawal of counsel – Paramount duty to the court – Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666 – Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) [2014] VSC 400 – Application refused – Costs ordered on a standard basis.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | David Campbell SC Jamie Ronald | Ken Cush & Associates |
| For the Defendant | Sam D Hay KC Daniel Bongiorno | Colin Biggers & Paisley |
HER HONOUR:
These reasons deal with an application by the plaintiff for an order that the defendant pay the plaintiff’s costs of the proceeding on an indemnity basis. The costs orders are principally sought pursuant to ss 28 and 29 of the Civil Procedure Act2010 (Vic) (the Act), alternatively pursuant to s 24 of the Supreme Court Act1986 (Vic) and Order 63 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) (the Rules) or the inherent jurisdiction of the Court. The application is made by Summons dated 18 May 2022 and seeks the following orders:
1.The defendant by reason of its failure to use reasonable endeavours to comply with its overarching obligations imposed by the Act be required to pay the plaintiff’s costs of the proceeding on an indemnity basis.
2.The defendant by reason of its failure to comply with its obligations in respect of discovery as required pursuant, inter alia, to s 55 of the Act and Order 29 of the Supreme Court (General Civil Procedure) Rules2015, be required pursuant to s 56 of the Act, to pay the plaintiff’s costs of the proceeding on an indemnity basis.
3.The defendant pay the plaintiff’s costs of this application on an indemnity basis.
The trial of this proceeding was listed for hearing before me as a cause commencing on 26 April 2022. It was managed and listed concurrently with a number of ‘related’ matters, and five matters remained unresolved on the day the trials were due to commence. The five matters all involved allegations of sexual abuse when each plaintiff was a student at Marist Brothers College, also known as Immaculate Heart College (IHC) Preston (the school), a catholic secondary school for boys. The perpetrator of the alleged abuse was Mr Gregory Vincent Coffey (Coffey), who was employed as a teacher at the school from 1972. In 1980, Coffey was appointed as a lay headmaster replacing Brother Stanislaus, a member of the Marist Order. All five plaintiffs have pseudonym orders made regarding their identities.
Four of the proceedings related to Coffey’s time as principal of the school. Mr Valentini alleged abuse by Coffey between 1980 and 1982; Mr BLT[1] alleged abuse by Coffey between 1981 and 1982; Mr Moss[2] alleged abuse by Coffey in 1980; and Mr Ansell[3] alleged abuse by Coffey in 1980. The fifth proceeding related to Coffey’s time as a teacher at the school where Mr Affini[4] was alleging abuse by Coffey during 1972 and 1974. Ultimately, as detailed below, the defendant withdrew the non-admittance of the abuse in the initial defences[5] and admitted that the physical and sexual abuse of each of the plaintiffs[6] occurred.
[1]S ECI 2020 01507 BLT (a pseudonym) v Trustees of the Marist Brothers.
[2]S ECI 2020 01510 Tristan Moss (a pseudonym) v Trustees of the Marist Brothers.
[3]S ECI 2020 01515 Nathan Ansell (a pseudonym) v Trustees of the Marist Brothers.
[4]S ECI 2020 01512 Kirby Affini (a pseudonym) v Trustees of the Marist Brothers.
[5]Defendant, ‘Defence’ in Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 29 July 2020, [18]-[20].
[6]References to ‘plaintiffs’ in this ruling are references to the 5 plaintiffs who seek orders for indemnity costs in their favour consistent with the application in Valentini filed on 19 May 2022. Any reference hereafter to ‘plaintiff’ is a reference to Valentini, unless stated otherwise.
The five proceedings resolved subsequent to 26 April 2022. The matter of Ansel settled on 27 April 2022. The matters of Affini and Moss settled at judicial mediation on 9 and 11 May 2022 respectively. The remaining matters resolved on 16 May 2022 and 17 May 2022 after further discussions between counsel.
The application for indemnity costs is made in all five proceedings on identical grounds.
In summary, the application for indemnity costs is based upon three aspects of the defendant’s conduct in the proceeding. The first issue is the defendant’s conduct in relation to denials pleaded in its original defences. Those denials were maintained until the amended defences as foreshadowed shortly prior to the hearing. Those denials are said not to have had a proper basis. The second is its conduct (and that of its insurer) with respect to discovery and production of documents. The third is based upon the disruption to the commencement of the trial caused by an application by the defendant’s counsel for leave to withdraw. That application to withdraw was foreshadowed on the second day of hearing.
In support of his application the plaintiff relies on three affidavits of his solicitor (Sangeeta Sharmin) dated 26 April 2022, 18 May 2022 and 20 May 2022. The defendant relied on two affidavits of its solicitor (Vanessa Kemp) dated 10 May 2022[7] and 23 May 2022. Objection was taken to three paragraphs of the Kemp affidavit of 23 May 2022 on the basis that it did not disclose the source of the information and their belief of hearsay evidence. The objection had been received only shortly prior to the hearing and the defendant consequently had insufficient time to adduce further evidence as to the source of that information and belief but conveyed from the bar table what that further evidence would disclose. The parties took the sensible course that I receive the affidavit including the paragraphs under objection with the plaintiff confining his objections to weight and not to admissibility. Additionally, I received written outlines of submissions on costs from the plaintiff[8] and from the defendant.[9]
[7]This affidavit was sworn in the BLT proceeding deposing to common issues of discovery and production relevant in all five related proceedings.
[8]Plaintiff, ‘Outline of Plaintiff’s Written Submissions relating to Costs’, Submissions in Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 25 May 2022.
[9]Defendant, ‘Defendant’s Submission Opposing Indemnity Costs’ Submissions in Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 26 May 2022.
I will first set out some of the common factual context giving rise to the five proceedings as opened and disclosed by the documents.
Actions of Coffey
The proceedings of Mr Valentini and Mr BLT were the two remaining when the plaintiffs formally opened the cases on 13 May 2022. They were opened on the basis that the evidence relevant to both proceedings would be that between 1967 or 1968 and the end of 1971 Coffey was a member of the Salesians of Don Bosco (Salesians), a catholic religious order. During that time, he taught at schools operated by the Salesians in Victoria and then in Port Pirie, South Australia. The plaintiffs’ case was that the transfer to Port Pirie was as a result of misconduct in the Victorian school. In 1971 a complaint was made to the South Australian Police in Port Pirie by a student from the Port Pirie school that Coffey had indecently touched him. As a result, Coffey was charged with one count of indecent assault occurring on 17 December 1971. He pleaded guilty to that charge and was sentenced by Ward J of the Central District Criminal Court on 21 February 1972. The sentencing remarks that the plaintiff proposed to rely on indicated that at the time of sentence, Coffey was in employment in Victoria. He began teaching at the school in 1972.
In 1994, further charges were laid in respect of sexual offending in 1974 and 1975 in Victoria against students at the school. Coffey pleaded guilty to those charges. For the purpose of sentencing, a report was obtained by Coffey’s solicitors from a psychiatrist, Dr Kenny dated 20 June 1997. A hearsay representation by Coffey to Dr Kenny was intended to be relied on by the plaintiff as supporting knowledge of the defendant about the South Australian charge and conviction. Coffey was sentenced by Nixon J in the County Court of Victoria on 14 October 1997.
In 1997, further criminal charges were brought in relation to sexual offences committed against students at the school in 1975 and 1976. Coffey pleaded guilty. In 2007, further criminal charges were brought in relation to offences in Port Pirie in 1971. Coffey has since died.
The plaintiff’s case on liability
The plaintiff served a notice of intention to adduce tendency evidence in relation to the Coffey’s actions. That evidence comprised statements from 44 persons who had made prior statements that had been obtained through discovery, subpoena or otherwise.
On the question of the defendant’s knowledge of Coffey’s actions, the plaintiffs’ opening drew together a number of threads:
a) Coffey represented to Dr Kenny that the School was aware of the charge and conviction in South Australia from the time he commenced at the school;
b) one student at the school (known as IHC5) reported Coffey’s behaviour to the then Principal Brother Stanislaus in 1974;
c) another student (known as IHC9) who had left the school and then attended St Joseph’s, another school operated by the Marist Brothers, had reported Coffey’s behaviour to the principal of St Joseph’s;
d) as well as actual knowledge from these sources, the plaintiffs would seek to establish as a matter of inference that an inquiry process and interview on application for employment would have or ought to have sought information from the Salesians and the school at Port Pirie (amongst others), which would have disclosed the prior criminal conviction;
e) the plaintiffs also relied on information from the claim for damages brought by IHC5 that had been filed in August 1998 in this Court against the same defendant as these proceedings. IHC5 applied to join Mr Coffey and Brother Stanislaus as defendants. The joinder application was out of time and was supported by an affidavit of IHC5’s solicitor. Amongst other things, it deposed to instructions as to the detail and circumstances of the complaint and that full disclosure of those matters has been made to the Marist Brothers and to Brother Stanislaus. The information was relevant in IHC5’s proceeding to demonstrate that no prejudice arises by reason of the late joinder. At the time of that litigation an investigator was commissioned to look into the allegations in the Statement of Claim. The opening also references a medicolegal examination by Dr Stern in that proceeding with representations by IHC5 of complaint to the principal. IHC5’s claim was settled and orders were made in July 1999;
f) despite the complaint by IHC5, Brother Stanislaus provided a supportive recommendation to Mr Coffey’s application for the position of principal and thereby the defendant was fixed with actual knowledge at the time of appointment to the position he held when the abuse of Mr Valentini and Mr BLT occurred;
g) in March 2017, IHC5 made a contact report to the Professional Standards Resource Group Victoria. The statement taken at that time also referred to the complaint made to Brother Stanislaus.
The Civil Procedure Act
In 2010, the Civil Procedure Act was enacted with four purposes:
(a)to reform, modernise and make uniform processes in civil litigation across jurisdictions;
(b)to simplify the language of civil procedure;
(c)to provide necessary amendments in other legislation to reflect new procedures; and
(d)to provide for an overarching purpose in the manner in which civil proceedings are conducted. That overarching purpose is to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[10]
[10]Civil Procedure Act 2010 (Vic) s 1.
To achieve the overarching purpose of facilitating the resolution of dispute in a way that embraces the qualities prescribed by the Act, participants in civil proceedings are obliged to certify at the commencement of a proceeding that they have read and understood the overarching obligations (the obligations) imposed. The obligations apply to all parties, the legal practitioners and law practices acting for those parties, and those who provide financial or other assistance so as to exercise control or influence over the conduct (such as insurers or litigation funders).[11]
[11]Ibid s 1.
There is, on all persons to whom the obligations apply, a paramount duty to the Court.[12] The nature of the paramount duty is to further the administration of justice.
[12]Ibid s 16.
The remaining eleven obligations are:
(a)to act honestly;
(b)to make claims or responses that have a proper basis;
(c)to only take steps to resolve or determine a dispute;
(d)to co-operate in the conduct of the proceeding;
(e)not to mislead or deceive;
(f)to use reasonable endeavours to resolve a dispute;
(g)to narrow the issues in dispute;
(h)to ensure costs are reasonable and proportionate;
(i)to minimise delays;
(j)to disclose documents critical to the resolution of the dispute; and
(k)to protect and not use documents produced under section 26 other than in connection with the proceeding.[13]
[13]Civil Procedure Act 2010 (Vic) ss 17-27.
The Act gives courts a discretionary power to impose sanctions for contravention of the obligations by making such orders as it considers appropriate ‘in the interests of justice’.[14] The power includes making orders for costs associated with the contravention, ordering compensation for financial or other loss, orders regarding interest or ordering steps to remedy a contravention or to restrict steps taken by a party in contravention.
[14]Ibid s 29.
The plaintiffs’ application alleges that the defendant breached its paramount duty to the Court, its obligation to make only claims or responses that have a proper basis, its obligation not to mislead or deceive, and its obligation to disclose critical documents.
How the breaches are characterised
Pleadings
In respect of the defence filed, the plaintiff alleges:
(a) that in serving its defence on 29 July 2020 that:
(i) denied it knew or ought to have known of the charge and conviction in South Australia arising from events in 1971;
(ii) denied actual or constructive knowledge of a general or specific risk to children from the presence of Coffey;
(iii) denied that the abuse and injury was a breach by Coffey; and
(iv) denied vicarious liability for breach by Coffey;
it contravened the paramount duty to the court and the obligation to make responses and claims that had a proper basis (breaching ss 16 and 18);[15] and
(b) by its conduct leading up to the proposed Amended Defence[16] and by maintaining the four denials as to knowledge listed in (i) and (ii) above in the Amended Defence filed in the BLT matter on 13 May 2022.[17]
[15]Plaintiff, ‘Grounds Re Summons’, Grounds in Relation to Summons Dated 18 May 2022 in Valentini (a pseudonym) v Trustees of the Marist Brothers S ECI 2020 01513, 20 May 2022, ground 1(a)(i)-(vi).
[16]In Valentini, the proposed Amended Defence was dated 22 April 2022, and in BLT it was dated 13 May 2022.
[17]Plaintiff, ‘Grounds Re Summons’, Grounds in Relation to Summons Dated 18 May 2022 in Valentini (a pseudonym) v Trustees of the Marist Brothers S ECI 2020 01513, 20 May 2022, ground (1)(b) in maintaining denials of 1(a)(i)-(iv).
Discovery
The plaintiff alleges the defendant by conduct in providing discovery is in breach of its paramount duty to the Court and its obligation not to mislead or deceive. Additionally, the plaintiff alleges the defendant failed to disclose the existence of documents ‘critical to the resolution of the dispute’ under s 26 and is in breach of its overarching obligation to do so. The plaintiff advanced this submission on the following bases:
(a) the swearing of the affidavit of documents on 11 June 2020 was misleading or likely to mislead because the affidavit asserted that the defendant did not have or no longer had documents other than those listed in the affidavit, when it did have, and subsequently produced, further documents including documents that were critical to the resolution of the dispute; and
(b) by its conduct after swearing the affidavit of documents, in the lead up to producing additional documents and swearing a supplementary affidavit of documents[18], that the defendant acted in a way that was misleading or likely to mislead (breaching ss 21 and 26). Principally this included by correspondence and by informing the Court on 26 April 2022 that the defendant had no further documents bearing on actual or constructive knowledge of the defendant about the risk of sexual abuse of children by Coffey at the school.
[18]Filed on behalf of the defendant and sworn on 23 May 2022.
Unexplained disruption of trial
It is alleged that the defendant is in breach of its paramount duty to the court by the unexplained withdrawal of counsel, causing delay and expense to the plaintiffs from the second day of trial onwards (breaching s 16).[19]
[19]The defendant’s original counsel sought leave to withdraw on 27 April 2022.
Chronology of pre-trial progress
In order to understand the submissions of the parties, it is necessary to first set out a chronology of events, and also set out a summary of the relevant documentary evidence including how and when it came to be produced. This chronology is drawn from the affidavit material relied on by the parties.
On 26 March 2020, the plaintiff filed a Writ and Statement of Claim. The defendant then sought an extension of time to file the defence, which agreed to by the plaintiff. The explanation for the extension was that the initial engagement of Coffey was arranged by Catholic Education Melbourne and the defendant wished to obtain relevant employment documents by issuing a subpoena to that entity.[20] The defendant filed a subpoena to produce against Catholic Education Melbourne on 4 May 2020, and a defence on 29 July 2020.
[20]Affidavit, ‘Affidavit of Vanessa Kemp’, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, sworn on 23 May 2022, [7]-[9].
The defence took objection to a number of paragraphs that it stated were defective and lacked particulars. In particular, it objected to the paragraphs pleading actual and constructive knowledge of Coffey’s 1972 conviction in South Australia .[21] It similarly objected to and denied under cover of objection actual and constructive general knowledge of the risk of sexual abuse of children at the school.[22] Breach of duty was denied.[23]
[21]Defence, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 29 July 2020, [14]-[15].
[22]Defence, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 29 July 2020, [24]-[25].
[23]Ibid [28].
In the latter half of 2020, the plaintiff filed an affidavit of documents and subpoenaed a number of third parties including the police and the Office of Public Prosecutions in Victoria and South Australia, and the Salesians.
On 22 January 2021, at a first directions hearing, consent orders were made timetabling interlocutory matters and fixing the proceeding for hearing on 26 April 2022. Amongst other orders, the parties were ordered to:
(a) make any requests for further and better particulars by 5 February 2021 and file and serve any further particulars within 28 days of that request;
(b) complete discovery by 26 March 2021;
(c) file and served interrogatories by 9 April 2021;
(d) serve any order 42A subpoenas by 30 July 2021;
(e) serve particulars of special damages by 19 March 2021 and serve any expert reports to be relied on by the defendant by 28 May 2021;
(f) participate in a mediation by 27 August 2021; and
(g) provide an updated exchange of expert reports and updated particulars of special damages by no later than two months prior to the trial date.
In accordance with the orders, the defendant made a formal request, including particulars regarding knowledge of the defendant, precautions that would have been taken by a reasonable person in the position of the school authority relevant to the question of breach, and details of when and where on the school premises the pleaded abuse took place.
The defendant made follow-up requests for the outstanding further and better particulars to the plaintiff’s solicitors on 24 June 2021 and 26 July 2021. By letter dated 9 August 2021, the plaintiff’s solicitors provided further particulars. As to actual knowledge, the plaintiff identified the representation of Coffey to Dr Kenny. As to who and when knowledge was fixed, the particulars said ’senior members of the Marist Brothers’ had actual knowledge at the time Coffey commenced working at the school. Some particulars foreshadowed further particulars to be provided after discovery although by that time discovery was not outstanding.
Apart from the request for particulars and the plaintiff’s affidavit of documents affirmed on 19 October 2020, neither party complied with the initial timetabling orders and a number of extensions to the trial timetable were ordered by consent.
The defendant filed an affidavit of documents, which was sworn on 10 June 2021.
The plaintiff did take issue with the adequacy of the defendant’s discovery. The solicitors wrote to the defendant on 6 October 2021 identifying eight categories of documents. Four related to Coffey himself: applications for any role at the school; his personnel file; documents relating to his consideration for, and approval as, school principal; and documents regarding the supervision provided to him in those roles. Two categories dealt with documents relating to the establishment and running of the school and production of the Marist Brothers constitution, and other documents. One sought any complaints to the Marist order regarding Coffey whether or not they occurred at the school.
The defendant was slow to respond and a number of follow-up requests were made before the defendant provided a substantive response on 23 March 2022. In some categories the defendant confirmed that no such documents existed or could be located. In other categories, the defendant explained why it took the view that the documents requested were not relevant, for example because Coffey was not a member of the Marist order and not bound by its constitution and other rules. The defendant confirmed it had discovered all complaints of which it was aware and said it held no documents of complaints relating to Coffey’s time as a Salesian. It produced one further document. That document did not feature in any way in this application.
In July 2021, the plaintiffs each made an application for pseudonym orders, which were granted. The plaintiffs then amended each Writ and Statement of Claim to give effect to the pseudonym orders. At that time, the plaintiffs did not make any amendments to bring the pleadings in line with the further particulars sought and provided or informed by the discovery that had been made and other documents obtained thus far.
On 4 March 2022, further consent extensions to the trial timetable were granted. The time to interrogate was extended to 4 March 2022 (the parties serving interrogatories on this date). Order 42A subpoenas were now to be issued by 25 March 2022 and mediation was to have occurred by 25 February. A final directions hearing was listed for 25 March 2022. At all times, the parties sought to maintain the trial date of 26 April 2022.
Mediation occurred during the period 18 to 28 February 2022 in this and a number of related proceedings (the five claims still on foot on 26 April 2022 and at least two additional matters).
An Order 42A subpoena addressed to Catholic Church Insurances (CCI) was filed on 16 March 2021. Objections were received to the subpoena and an objections hearing listed for 14 April 2021. The day prior, some documents were produced and access to those documents was ordered. Timetabling for the objections hearing was made and it was adjourned to 20 April 2021.
Hearsay and Tendency Notices were filed by the plaintiff on 7 April 2021.
The objections to the CCI subpoena were withdrawn after the hearing on 20 April 2022 and before reasons were delivered. ‘Other Matters’ of the Judicial Registrar’s order put the resolution of the objections into context:
F.The dispute concerning the remaining objections to the subpoena categories was resolved by the identification of new information in the course of the hearing as to the legitimate forensic purpose to which the subpoenas were directed, being the tendency notices filed by the plaintiff in each proceeding. The resolution did not arise because of any determination made by the Court, or through the expression of any party’s arguments in written submissions – indeed the parties’ written submissions largely did not address this issue in relation to the pre 1972 time period in question, other than in relation to the specific incident relating to the conviction referred to in the plaintiffs’ statements of claim. The plaintiffs’ do not appear to have indicated their reliance on the factual matters in their tendency notices as providing the bases to support the subpoenas prior to the objections hearing.
G.The onus of establishing the material sought under a subpoena will serve a legitimate forensic purpose is borne by the party issuing the subpoena. Particularly in circumstances where CCI appears not to have been made aware of the tendency notices filed, and where the plaintiff’s submissions and prior correspondence appear to have proceeded on a different basis than that which ultimately led to the dispute being resolved…, the approach of CCI and the defendant in not withdrawing its objections until after the tendency issue was addressed in the course of the hearing does not appear unreasonable.
Orders were made timetabling the inspection of documents that were produced through 21 and 22 April 2022, given the impending trial date.
On 21 April 2022, the plaintiff’s call over form indicated that there were no outstanding interlocutory issues.
On 22 April 2022, the defendant informed the plaintiffs of its intention to amend its defence admitting the occurrence of sexual abuse and admitting that it was vicariously liable for the acts of Coffey.
The trial date of 26 April 2022 remained and the five trials commenced on that day. The plaintiff in Valentini proposed to amend his Statement of Claim in light of documents that had come to light through the CCI subpoena process.
The plaintiff served a Further Amended Statement of Claim on 27 April 2022. The amendments included additional paragraphs including:
(a) a plea that Coffey told the defendant of his conviction in South Australia (based upon the content of Dr Kenny’s report)[24];
[24]Amended Statement of Claim, 27 April 2022, [13A].The representation being ‘He said that when he started work for the Marist Brothers they knew about this one incident but there were no more episodes for a couple of years.’
(b) a plea of complaint by a student to Brother Stanislaus in the period between 1973 and 1976[25] (based upon the complaint made by IHC5 and the earlier court proceeding brought by IHC5); and
(c) a plea of a complaint by a student of sexual abuse by Coffey in 1975-1976, made to the principal of another Marist School subsequently in 1980[26] (based upon IHC9).
Other amendments were also incorporated.
[25]Ibid [15A].
[26]Ibid [16A].
The documents produced
Through November and December 2020, the plaintiff served subpoenas to produce documents on the police and offices of public prosecutions in Victoria and South Australia and upon the Salesians among others. Various documents were produced.
Dr Kenny’s report from 1997 came to light through the process of subpoenaing those involved in the criminal justice system by the plaintiff’s solicitors at the end of 2020. According to the defendant’s submission, it was obtained via subpoena from the Office of Public Prosecutions Victoria.[27] It is clear that the report was in the possession of the plaintiff’s solicitors on 9 August 2021 when the letter responding to the request for particulars was sent.[28]
[27]That subpoena being returnable on 11 December 2020.
[28]Affidavit, ‘Affidavit of Vanessa Kemp’, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, sworn on 10 May 2022.
In his affidavit of documents, Brother Carroll Provincial of the Order disclosed 132 documents across the five nominated categories: plaintiff school records; defendant policies and procedures operating schools; Catholic Education documents pertaining to school governance and operation; documents relating to the perpetrator; and documents evidencing other complaints received by the defendant against Coffey.
Under the category of prior complaints, 29 other complaints were disclosed identified anonymously as IHC1 - IHC29. In each case an initial contact letter and/or a statutory declaration and/or a writ or Statement of Claim was disclosed in redacted form. In relation to documents of other complaints, Brother Carroll swore:
The defendant has not, however, discovered any other documents obtained by the defendant or their solicitors in relation to the claims of other alleged victims, such as medico-legal reports, on account that they are not relevant to the issues in dispute in this proceeding.
The first affidavit of Vanessa Kemp deals specifically with discovery. It set out the categories of documents identified as being relevant and described the task of locating those documents as significant. She observes that discovery to this point without the benefit of the particulars requested. She said that documents requested from and discovered by the defendant for other claims were ‘source’ or ‘original’ documents as distinct from secondary documents such as medicolegal reports.[29] She considered that documents relating to other complaints were relevant to establishing allegations of tendency. and so requested from the defendant ‘source’ or original’ documents – complaints, contact reports or statements of claim – but not secondary documents. The collection of the source documents was a task that took several weeks with further time to redact for privacy. I infer that most pleadings and medico-legal reports in relation to the other complaints would be held in a variety of places, not all in the possession of the Marists, though some may have been within their power or control.
[29]Affidavit, Vanessa Kemp, 23 May 2022, [17].
As to the discrepancy between documents produced by the defendant in discovery and those produced by CCI, Ms Kemp sets out a number of explanations for why documents held by an insurer and those held by an insured might differ. She sets out the additional steps taken as a result of the Further Amended Statement of Claim dated 27 April 2022. Files were reviewed and the file held by the defendant’s solicitors in relation to the IHC5 1998 proceeding was discovered to have been destroyed. She also noted that although her firm acted for the defendant in the earlier proceeding by IHC9 she was unaware of that fact prior to production of documents by CCI. She had located an electronic file that is incomplete and described the steps taken to retrieve the physical file from external archive storage. She deposes to a significant burden being placed on the defendant to make inquiries of solicitors to obtain all pleadings and medico-legal reports that are not held by the defendant itself in respect of all claimants.
The documents that were discovered in the Affidavit of Documents relating to IHC5 included a 2017 contact report, 2013 Professional Standards Office notification and the 26 August 1998 Statement of Claim. The contact report includes a signed statement taken by an interviewer. It contains the following paragraph in relation to events, most likely occurring in 1974, when IHC5 was in Form 3:
The sexual abuse became more aggressive, demanding and violent. I reported him to Brother Stanislaus. He told me he would look into it. He asked me many questions like “who did I tell”. He also said he would sort it out and it would stop. He also told me not to let it interfere with my studies.[30]
[30]Court Book, Key Documents Folder on Liability, page 1571.
On 17 March 2022, the plaintiff served the subpoena on CCI.[31] Following the process of objection and hearing set out earlier, CCI produced documents across 21 and 22 April 2022.
[31]Affidavit, ‘Affidavit of Sangeeta Sharmin’, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 26 April 2022, [24].
As a result of those documents the plaintiff’s solicitors wrote on 25 April 2022 regarding the defendant’s failure to discover documents, which was said to be apparent from the CCI documents disclosed. Illustrations included specific documents relating to IHC5 and IHC29 and a general observation that no medico-legal reports or other pleadings relating to the 29 prior complaints had been discovered, and that some victim statements had not been discovered. This was the first occasion that the plaintiff had responded to the statement in the sworn affidavit of documents as to the existence of medico-legal reports or other documents such as pleadings in the cases of other complainants. Further and better discovery was sought of all medico-legal reports, pleadings and victim statements in relation to the 29 complaints as well as repeating an earlier request for any other complaints made against Coffey whether or not occurring at the school.[32]
[32]Affidavit, ‘Affidavit of Sangeeta Sharmin’, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 26 April 2022, [24].
Additionally the CCI documents revealed a number of documents relevant to Coffey’s time in the Salesians and the plaintiff was seeking to have the Salesians properly and fully answer the subpoena that had been served on them at the end of 2020.
In relation to the request on 25 April 2022 regarding the adequacy of discovery, Michelle Britbart KC for the defendant said to the Court:
What was not discovered were any documents which were held such as medical reports and so on, and I make this submission to Your Honour, they are simply not relevant to any issue in this proceeding, with the proviso that unless they reveal anything which may go to actual knowledge or constructive knowledge. … So we say the relevant documents have been discovered.[33]
[33]Transcript of Proceedings, Valentini (a pseudonym) v Trustees of the Marist Brothers (Supreme Court of Victoria, S ECI 2020 01513, Forbes J, 26 April 2022) 26 (emphasis added).
Documents relevant to the defendant disclosed by the CCI subpoena included amended or proposed amended pleadings in the civil claim brought by IHC5 that sought to join Brother Stanislaus as a defendant, and other medicolegal reports and pleadings in other proceedings commenced by some of the 29 disclosed complaints. The plaintiff also obtained a copy of many of the IHC5 documents through a request to search the Court file regarding the 1998 proceeding.
In preliminary remarks on 26 April 2022, the plaintiff’s Senior Counsel made specific reference to the following documents disclosed by the CCI subpoena:[34]
[34]T 10.16 and following to T14
(a) an interview with a previous member of the Salesians who spent two years at Sunbury at the time Coffee was there, detailing his recollection of events at that time and the circumstances of Coffey’s removal to Port Pirie;[35]
[35]Affidavit, ‘Affidavit of Sangeeta Sharmin’, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 22 August 2022, exhibit 4.
(b) two interviews, one with Father McDonald, with reference to yearbooks for the school at Sunbury, and another with Father Murdoch, then Provincial of the Salesians;
(c) the application to join Br Stanislaus to the IHC5 proceeding in 1998; and
(d) the 1997 report of Dr Kenny.
Further and better discovery was canvassed throughout the appearances from 26 April 2022. These deficiencies were ventilated before the Court and the defendant resisted that its discovery was deficient. As further discovery was sought it requested that more specificity be given, having regard to the admission of the abuse. The plaintiff identified all documents related to Brother Stanislaus’s knowledge from 1973 based upon the IHC5 complaint and pleadings in relation to that complainant. The request was initially confined to additional documents relative to IHC5 and IHC9.
Further searches, including of the files held by the relevant solicitors required the defendant to produce additional documents. Ultimately, those additional documents were deposed to in a supplementary affidavit of documents sworn on 23 May 2022.
Beyond chronology, the affidavits of Sangeeta Sharmin exhibited four documents produced pursuant to the subpoena addressed to CCI.[36] They were:
[36]Affidavit, Sangeeta Sharmin, 26 April 2022, exhibit 4.
(a) an undated statutory declaration of an unnamed person who had been a trainee to be a Salesian brother and was at Rupertswood with Coffey;
(b) a Statement of Claim in which the Salesian Society (Vic) Inc was the defendant in which the plaintiff alleged sexual abuse by Coffey during his time with the Salesians in 1968 and abuse by others between 1970 and 1971 at Rupertswood; and
(c) transcripts of interviews conducted with two Salesian Fathers in 2003 and 2005 regarding Coffey.
Broadly the affidavit also deposes to a number of documents, namely amended pleadings and medico-legal reports produced by CCI of which she had been unaware prior to inspection of the subpoenaed records.[37]
[37]Affidavit, Sangeeta Sharmin, 26 April 2022, [57].
The second affidavit of Ms Kemp deals more broadly with the conduct of the proceeding. Other than matters of chronology, it set out a submission as to why the denials in the defence were appropriate. It also sets out a number of errors in the plaintiff’s grounds as to the Amended Defence in BLT. Those errors arise because the variation in the numbering of the pleadings across the various documents. In summary, it says that the maintenance of denials as to knowledge in the Amended Defence of BLT is simply incorrect. The denials have been amended to non-admissions as to the South Australia conviction[38] and no plea is made in respect of knowledge of the risk posed by Coffey and otherwise there is no denial.[39] The error arises because of variation in the paragraph numbering between proceedings.
[38]Amended Defence, BLT (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 13 May 2022, relevantly [12] and [13].
[39]Ibid relevantly [22] and [23].
In response to the amended Statement of Claim the affidavit deals with steps taken to conduct further searches. As a result, a review of the defendant’s records in relation to IHC5 and IHC9 and other records was conducted, which confirmed that the defendant did not hold copies of the documents produced by CCI relating to those complainants. The affidavit sets out the steps taken to swear a supplementary affidavit of documents ultimately sworn, filed and served on 23 May 2022.
In the affidavit, Ms Kemp provided an apology and explanation for the late response to the plaintiff’s initial request for further and better discovery in October 2021. The affidavits of Ms Sharmin and Ms Kemp also deal with a dispute over an inconsistency between documents produced in these proceedings and documents produced by Carroll & O’Dea acting for the Marists in a further proceeding involving IHC5. The issue raised was one of privilege about which it is not necessary to say anything.
As a result of those documents, instructions were obtained and leave given to amend the Statement of Claim.
Withdrawal of Counsel
By the end of the first day of trial the intention was that the plaintiff would pursue the Salesians for their subpoena compliance, would pursue further and better discovery from the defendant and provide some specificity as to the additional documents sought (which was done). The plaintiff would provide an amended Statement of Claim and the foreshadowed Amended Defence await and be responsive to that pleading.
The following morning an amended pleading in the Valentini proceeding was provided with the related proceedings to follow suit. The defendant indicated that overnight an issue had arisen and the defendant’s counsel had recommended obtaining independent advice. Senior Counsel informed the Court that:
I’m in a position where I don’t believe that I can at the moment continue in the case while that matter is outstanding.[40]
[40]Transcript 42.1-3.
The following morning when the proceeding resumed, Senior Counsel informed the Court that advice had been sought and was expected to be ready by Monday. Senior Counsel therefore requested an indulgence until the following Tuesday and informed the Court:
I have spoken to my learned friend and I think we are both in a position where we think the time between now and then could be usefully spent. We note that your Honour has offered us the option of a judicial mediation. We don’t see that formality as necessary, we have a dialogue between us, but we are both in a position where we could at least try to narrow some issues and discuss the matters in that time.[41]
[41]Transcript 46.16.
At that time, the plaintiff was progressing the outstanding document production from third parties and also attended to the issue of a short served subpoena. By the following Tuesday when the parties next appeared, one of the five outstanding matters had resolved. Senior Counsel for the defendant informed the Court, in light of the steps that had been taken to seek advice from independent counsel, that:
Regrettably my junior and I find ourselves in a position where we are unable to continue to act on behalf of the defendant, whilst at the same time responsibly discharging our professional obligations. And in those circumstances, we seek your Honour’s leave to withdraw from the case on behalf of the defendant.
Briefing of alternate counsel was yet to occur and there remained some uncertainty as to whether the matters could continue. The plaintiff was concerned at the additional expense incurred by any delay, confirming they were ready to proceed with Mr Valentini’s case first, followed by Mr BLT. By Thursday, new counsel (David Collins KC and Daniel Bongiorno) appeared and the course jointly proposed by the parties was to attend a judicial mediation on the Monday. The plaintiff sought that the outstanding issue of discovery be dealt with on Tuesday following judicial mediation and any remaining matters then proceed. In part that concern was raised because Senior Counsel currently briefed had no availability beyond Monday.
By the following Tuesday, Sam Hay KC had been briefed for the defendant to appear in those trials that proceeded. Two matters had resolved at the judicial mediation. After some progress on the discovery front, the case for the remaining plaintiffs were opened by their Senior Counsel commencing on 16 May 2022.
Ms Sharmin deposes to the plaintiffs’ inability to engage in discussions with the defendant between 27 April 2022[42] and 9 May 2022.
[42]The affidavit erroneously records the first date as 27 May 2022 at [6] but I assume it should read 27 April 2022.
Finally and on the issue of the counsel’s withdrawal, Ms Kemp did not waive privilege in respect of the reasons for the withdrawal application. Ms Kemp is informed by Michelle Britbart KC that between 27 April and her withdrawal on 3 May, offers were exchanged between the parties, Mr Collins KC and Mr Bongiorno were retained on 3 May and on 4 May, Mr Collins and Mr Campbell discussed the matter. Mr Hay KC was retained on 6 May to prepare for trial while Mr Collins remained briefed to continue negotiations and attend the judicial mediation.
Submissions of the parties
(i) Pleadings
The plaintiff submitted that the defendant did not have a proper basis to deny direct knowledge of the Port Pirie abuse and conviction because of Coffey’s prior representation to Dr Kenny and because any reasonable inquiry of the Salesians or authorities in Port Pirie on his engagement as a teacher would have disclosed that fact.
He submitted that in light of the complaint in approximately 1974 by IHC5 there was no proper basis to plead a denial of actual knowledge of the risk of abuse from Coffey nor a denial that they ought to have known of such a risk given the proceeding by IHC in 1998 and the inquiries made at that time. As such the defendant would have been in a position from 1999, if not earlier that they must have known of the risk of abuse to children in the school. A denial of knowledge in 2020 is therefore without a proper basis.
The plaintiff submitted that any responsible pleading as to knowledge could rise no higher than a non-admission. He also submitted that denials of breach by Coffey of his duty of care and of vicarious liability for those breaches never had a proper basis.
The defendant submitted that the denials, under cover of an objection that the pleading lacked any particulars as to knowledge upon which to respond, were appropriate. The initial pleading as to knowledge was confined to knowledge of the Port Pirie charge and conviction.[43] The initial pleading as to the general risk at the school and a specific risk posed by Coffey was wider and no time frame was identified. The amendments to the Statement of Claim regarding particularisation of knowledge were not made until the second day of trial. Actual or constructive knowledge based upon reports subsequent to 1972 was not pleaded or identified from discoverable documents until the commencement of the trial.
[43][13] and [14].
The defendant submitted that particulars of knowledge are to be pleaded in conformity with Order 13.10(3)(b). The submissions referred to Montclare v Metlife Insurance Limited[44] and Re Annesley Plant Hire Pty Ltd (No 2).[45] Knowledge is that of the organisation responsible for the school. What was known, how it became known, who held the knowledge and what facts would any inference be drawn were necessary particulars to avoid surprise and reveal the issues in dispute. A purported particular in the letter of 9 August 2021, that ‘Senior members of the Marist Brothers’ had knowledge in 1972 of Coffey’s conviction, was unhelpful in distilling the issue of knowledge.
[44](2009) 29 VR 20 [9] (Harper J).
[45][2014] VSC 350 (Robson J).
Further, the original pleading as to the abuse itself lack of a detailed account of the circumstances made the initial ascertainment of liability, direct and vicarious, difficult. The defendant says that the submission made that denials were maintained in the Amended Defence filed in BLT is wrong and based on a misreading of the defences.
(ii) Discovery
The plaintiff submitted that the defendant’s sworn affidavit of documents was misleading and made in contravention of s 21 of the Act. He submitted that a fair reading of the reference in the affidavit to documents not discovered was that those ‘additional documents had been considered and that to the extent that there were other documents…they did not contain relevant material’.[46] He submitted that his legal advisors reasonably relied on that representation. A supplementary affidavit of documents sworn by Brother Carroll on 23 May 2022 made it clear that there were other documents in relation to at least IHC5 relevant to the proceedings such that the earlier statement of Brother Carroll was not correct and therefore misleading. That representation repeated in correspondence and by Senior Counsel to the Court is also therefore misleading. The plaintiff identified the statement to the Court on 26 April 2022 quoted above at [55] as being misleading.[47]
[46]Plaintiff, ‘Outline of Submissions on Costs’, Submission in Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 25 May 2022, [41].
[47]By oral submission at Transcript 17, the extracted comments of counsel were those set out at [56] above.
Further, the plaintiff submitted that documents ‘critical to the resolution of the dispute’ were not disclosed in accordance with the obligation imposed by s 26 of the Act. The submissions do not identify what are said to be the documents critical to resolution other than including those discovered by the supplementary affidavit of documents sworn 23 May 2022.
The plaintiff submitted that I should reject any submission that documents held by an insurer responding to a claim on behalf of the insured are not discoverable by the insured. A distinction between a party to litigation and their insurer does not relieve a party of its obligation to make discovery.
The defendant submitted that the rules of discovery oblige a party to discover documents after a reasonable search. What amounts to a reasonable search is informed by Rule 29.01(3). The obligation is ongoing. The affidavit of documents sought to differentiate disclosure of documents establishing the existence of all complaints as opposed to all documents regarding all complaints in its possession power or control. The defendant submitted that both parties understood the relevance of those documents was principally on the question of tendency evidence. This was apparent from the plaintiff’s letter seeking further and better discovery. The plaintiff did not complain about the relevant disclosure in the defendant’s affidavit of documents sworn 11 June 2021 until 26 April 2022.[48]
[48]On the provision of the Affidavit of Sangeeta Sharmin sworn 26 April 2022.
(iii) Withdrawal of counsel
The plaintiff submitted that the withdrawal is unexplained and has clearly caused delay and additional expense such that the plaintiff’s representatives were ‘forced to be, in effect, on standby’.[49] Absent an explanation, the plaintiff should not be out of pocket for the period between 27 April 2022 and the resumption of hearing on 13 May 2022.
[49]Plaintiff, ‘Outline of Submissions on Costs’, Submission in Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 25 May 2022, [48].
The defendant submitted that the underlying reason for the withdrawal was privileged and the maintenance of privilege in the circumstance of the continuing trials is not surprising.
Notwithstanding the application, the defendant submitted that practitioners involved continued to progress matters, both in the outstanding document production and the overall settlement of matters.
Therefore the defendant submitted that as the period of delay was used constructively by both counsel involved and instructors, the costs incurred by the plaintiffs will be addressed by the costs of the entire period being awarded on a standard basis and should be treated no differently than the remainder of the proceeding.
Principles – the overarching obligations
The Act gives expression to the values that Parliament considers important for the conduct of those involved in civil litigation. It builds upon the common law duty of lawyers to the court and the administration of justice. It also provides a number of judicial tools to avoid an unmanaged adversarial procedure. The elements at the core of the paramount duty of a lawyer to act in a way that furthers the administration of justice were summarised in Bolitho v Banksia Securities Ltd as encompassing all of the following:
(a)A lawyer must be candid with the court and not mislead the court in any way.
(b)A lawyer must not corrupt the administration of justice, which requires them to conduct cases with due propriety and not to further any dishonest conduct on the part of the client. A lawyer must not assert a case they know is false, connive at or attempt to substantiate a fraud, or assist in any way in dishonourable or improper conduct. If a client insists on a lawyer conducting the case improperly, the lawyer must withdraw.
(c)If a lawyer discovers that a witness intends or is likely to give false testimony, they are duty bound not to present that individual as a credible witness. A lawyer must not produce a witness statement which they know to be false, or where they know that the witness does not believe it to be true in all respects. If the lawyer is put on inquiry as to the truth of the facts stated in the statement, they should, where practicable, check whether those facts are true. If a lawyer discovers that a witness statement they have served is incorrect, they must inform the other parties immediately.
(d)It is a breach of duty for a lawyer to have a conflict of interest in representing a client, not only in respect of the fiduciary relationship with the client, but also to the court. The duty to the court arises from the court’s concern that it should have the assistance of independent legal representation for the litigating parties. The integrity of the justice system and the concomitant preservation of public confidence in the administration of justice are both dependent on lawyers acting with perfect good faith, untainted by divided loyalties of any kind.
(e)A lawyer must exercise their judgment in the presentation of cases. They must advance only those points that are reasonably arguable. Mere mistake or error of judgment is not a breach of duty to the court, but misconduct, default or negligence of a serious nature may be a breach of that duty, and sufficient to justify an appropriate order.
(f)A solicitor cannot escape liability for lack of diligence on the ground that counsel has been briefed. Although, in general, a solicitor is entitled to rely on the advice of counsel properly instructed, they are not entitled to follow such advice blindly, and must apply their own professional mind to the issue. The solicitor is expected to be experienced in their particular legal fields, and the briefing of counsel does not operate so as to give automatic immunity.[50]
[50]Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666, [1319] (a)-(f) adopting and quoting Ipp J writing extra-judicially ‘Lawyers Duties to the Court’ (1998) 114 Law Quarterly Review 63.
As has been said by the Court of Appeal:
In our view, these powers are intended to make all those involved in the conduct of litigation – parties and practitioners – accountable for the just, efficient, timely and cost effective resolution of disputes.[51]
[51]Yara Australia Pty Ltd (ACN 076 301 221) V Oswal & Ors [2013] VSCA 337.
The paramount duty in s 16 is imposed where relevant on participants beyond lawyers. The ways that the duty might be met (or breached) might differ whether one is considering the conduct of a party, that of a legal practitioner (or law practice) or that of a non-party who meets the description of providing assistance to a party insofar as they exercise control or influence as defined by s 10(1)(d). Here I am concerned with the conduct of a party; the defendant.
Section 18 requires claims and responses to have a ‘proper basis’. It provides:
A person to whom the overarching obligations apply must not make any claim or make a response to any claim in a civil proceeding that –
(a) is frivolous; or
(b) is vexatious; or
(c) is an abuse of process; or
(d)does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis.
Breach of sub-paragraph (d) is relied on.
It was said by Dixon J in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) that:
Section 18 of the Civil Procedure Act expresses the overarching obligation to operate more broadly than the proper basis certification requirements under s 42 of the Act. When a substantive document is filed, a legal practitioner making a proper basis certification must certify that on the factual and legal material available each allegation of fact, each denial, or each non-admission in a document has a proper basis. The legal practitioner’s determination for the purpose of a proper basis certification must be based upon a reasonable belief as to the truth or untruth of an allegation or denial or, in the case of a non-admission, that the legal practitioner does not know, and therefore cannot say, whether a fact alleged or denied is true or untrue. Ultimately whether a claim has a proper basis is a question for the court. A person discharging the overarching obligation can do so by demonstrating a reasonable belief based upon the factual and legal material available at the time. If that is done, the obligation is discharged. The legislature appears to have intended that the s 18 obligation be complementary with the obligation to certify under s 42.[52]
[52]Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) [2014] VSC 400.
It was also said in Dura that s 18 is addressed to the moment in time when a claim is made or responded to. As such, it is relevant to know what matters the defendant was or ought to have been aware of at the time of filing its defence. Hindsight is to be resisted. Unlike other overarching obligations the proper basis obligation does not have continuing and ongoing application.[53]
[53]Ibid [89].
The obligation not to mislead or deceive in s 21 is an objective test. As was said by John Dixon J:
An intention to mislead or deceive is irrelevant for the purposes of s 21. The issue is whether, tested objectively, the conduct induces or is capable of inducing error. Considering its application begins by identifying the conduct that is said to meet the statutory description of ‘misleading or deceptive or... likely to mislead or deceive’. The first question is always ‘What did the alleged contravener do (or not do)?’[54]
[54]Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666, [1333] (‘Bolitho’) (citations omitted).
Section 26 is concerned with the disclosure of documents. By s 26(4)(b) the obligation does not limit or affect obligations in relation to discovery. Section 26 provides:
(1)Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control---
(a) of which the person is aware; and
(b)which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.
The obligation of a party to provide discovery is a critical part of civil litigation. It plays two roles, ensuring that parties know the case that they have to meet and have access to documents of each other relevant to proving that case, as well as ensuring that the parties put before the court all documents relevant.
The obligation of the parties with respect to discovery is to conduct a reasonable search.[55] In determining whether a reasonable search had been conducted, the factors in rule 29.01.1(5) are taken into account. They are:
[55]Rule 29.01.1(3).
(a) the nature and complexity of the proceeding;
(b) the number of documents involved;
(c) the ease and cost of retrieving documents;
(d) the significance of any document found; and
(e) any other relevant matter.
The obligation to make discovery under the Rules lies on the party but that party will depend to some extent on the advice of their solicitor in the searches conducted to meet that obligation. In Bolitho,[56] John Dixon J said the risk of conflict between a lawyer’s duty to the court and duty to their client is most likely to arise in the context of discovery. The solicitor’s duty is to advise the client of what amounts to relevant documents and the responsibility to ensure that the order for discovery is complied with.[57] In particular he said:
A solicitor is obliged to appraise the case and form an opinion as to what documents are probably in existence and actively seek confirmation of that fact from the client…. Both are required to undertake appropriate searches and make appropriate inquiries for documents that would assist the case for the party as well as for those that would not.[58]
[56]Bolitho (n 54).
[57]Bolitho (n 54) [1378], quoting Guss v Law Institute of Victoria [2006] VSCA 88.
[58]Bolitho (n 54) [1380] (footnotes omitted).
Discovery aides an informed assessment of the risks and prospects faced by all parties. This in turn promotes prospects of alternative dispute resolution, particularly mediation promoting confidence in negotiation informed by the production of relevant documentation.
The Act supplements the Rules, and the overarching obligation in s 26 is directed at the timely disclosure of key documents.
Consideration
The starting point is to consider whether any of the alleged breaches are made out.
Breach by pleadings that do not have a proper basis
The Statement of Claim gave no particulars of knowledge. Knowledge was pleaded in the Statement of Claim by paragraphs [13], [14], [23], and [24].[59] Rule 13.10 provides:
[59]Plaintiff, ‘Statement of Claim’, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, 26 March 2020.
(1) Every pleading shall contain the necessary particulars of any fact or matter pleaded.
(2)Without limiting paragraph (1), particulars shall be given if they are necessary—
(a)to enable the opposite party to plead;
(b)to define the questions for trial; or
(c)to avoid surprise at trial.
(3)Without limiting paragraph (1), every pleading shall contain particulars of any—
…
(b)disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice, which is alleged.
It is said that, without particulars, an allegation of knowledge is based upon no more than speculation. Harper J in Ristevski v Kyriacou & Zard Constructions Pty Ltd & Law Institute of Victoria (No 2) said,[60] of an pleading alleging fraud that was unparticularised:
The Court should not be concerned with hunches, no matter how reluctant litigants might be to put their hunches aside
He acknowledged however the difficulty in obtaining direct proof of fraud and that such particulars might consist of those facts from which the inference of fraud (or knowledge) might be drawn.
[60](Unreported, Supreme Court of Victoria, Harper J, 5 August 1997) and cited in Annesley Plant Hire Pty Ltd v Wilson (No 2) [2014] VSC 350, [169].
The pleading provided no particulars for either actual or constructive knowledge of Coffey’s conviction or of the risk posed by Coffey. The Statement of Claim did not set out when, how or who held actual knowledge, nor did it set out any factual matters that would be relied on to infer constructive knowledge. The defendant objected to the relevant paragraphs and made the denials under cover of that objection.[61] True it is in the absence of particulars a claim, or part of it, is liable to be struck out. It is wrong to say, as the plaintiff submitted, that at no time did the defendant take any step to strike out the deficient pleading. Wrong because instead the defendant sought particulars which the plaintiff agreed to provide. Although particulars were provided by letter, a particularised pleading to which a defendant would need to respond in a way that has a proper basis, was not provided until the 27 April 2022.
[61]By reason of a typographical error in the defence, a plea to paragraph 8 of the statement of claim is said to be to paragraph 6, so that all paragraphs thereafter do not match what should be the corresponding paragraph in the statement of claim. So that the responses to paragraph [13] and [14] are described as in fact responding to [14] and [15], and paragraph [27] of the defence objects to the lack of particulars of knowledge about the risk to children.
It may well be that for good reason the plaintiff was not in a position to provide particulars when the Statement of Claim was served and the best that might have been done at that time was to refer to particulars to be provided after discovery. When particulars are not provided, an order for particulars is generally not made before provision of a defence.[62] In those circumstances, Williams describes that the ‘convenient course’ is for a defence to be filed denying the allegations lacking particulars and apply for particulars afterward.[63]
[62]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.11(1)-(2).
[63]Blackie v Osmaston (1884) 28 Ch D 119; Sharer v Wallace (1950) All E.R. 463.
This is exactly what occurred in these cases. The denials therefore are made based upon the incomplete state of the plaintiffs’ pleadings. The Statement of Claim remained substantively unchanged until 27 April 2022. As the obligation in s 18 is one that is owed at the time the response is made, I do not accept the submission that maintaining the denials until the proposed Amended Defence on the eve of trial was a breach of s 18.
It seems to me that the proper basis for the denials of knowledge when the defence was filed, was based upon the state of the pleading that the defendant was asked to answer. The defendant was not required to amend its defence or withdraw those denials until such time as a particularised amended pleading was provided. That could have been done as early as August 2021 upon the discovery that was made by the defendant and the receipt of the report of Dr Kenny by subpoena inspection in late 2020.
In those circumstances, when the pleading was particularised, the defendant made an appropriate non-admission. I accept that in BLT in particular there was no maintenance of a denial on the particularised pleading. On either defence, the plaintiff was to be put to his proof on questions of knowledge.
There are two remaining denials said not to have a proper basis. The submissions did not expand why these denials never had a proper basis other than to say they were abandoned on the eve of trial. The oral submissions focused on the questions of knowledge as discussed above. The first other matter is a denial that the physical and sexual abuse and injuries to the plaintiff were caused by breaches of duty of care by Coffey.[64] The Statement of Claim and corresponding defence are pleaded:
[64][34] of the Defence.
[34]As a consequence of the trespass and breaches of duty of care by the defendant and Coffey, the plaintiff has suffered loss and damage.
As to paragraph 34, the defendant:
(a)insofar as the allegation in paragraph 34 are material to any claim against the defendant, it denies the allegations;
(b)the defendant otherwise does not plead to the allegations in paragraph 34 insofar as the allegations contained therein are made against a third party.
If the pleading in this form is responsive to the corresponding paragraph, it is clear in my view that the defence only pleads a denial of breach of duty owed by it and does not plead to any breach by Coffey.
Finally, a denial of vicarious liability for Coffey’s breaches of duty of care was said not to have a proper basis.[65] The plea of vicarious liability is at [35] of the Statement of Claim. The responding plea denies vicarious liability with a specific denial of vicarious liability for any criminal conduct committed by Coffey. Responding to a plea of vicarious liability requires consideration of the detail of the acts of abuse and the circumstances in which they occurred.[66] That is necessarily informed, in this case, by the collation of discoverable documents, the process of interrogation and other pre-trial processes, including the request for further particulars. Particulars were sought as to the pleaded abuse and as to the ‘placing of authority power trust and intimacy’ which were relevant to the question of vicarious liability. I also observe that a third party notice was issued against Archbishop Comensoli as the nominated third party,[67] pleading amongst other things that the operation of the school was such that any vicarious liability lay with the Archdiocese. Ultimately the third party proceeding resolved shortly prior to trial. I do not draw an inference that the defence never had a proper basis from the timing of the admission of vicarious liability on the eve of trial.
[65][36] of the Defence.
[66]Prince Alfred College Inc v ADC (2016) 258 CLR 13.
[67]Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) s 7.
I am not satisfied that the defendant’s defence dated 29 July 2020 breached its obligations under s 16 or s 18 of the Act.
Breach by conduct of discovery
There are two aspects to the breaches alleged. First the misleading nature of the discovery that was initially made, and second the inadequacy of that discovery in producing documents within its custody, possession, control or power.
The plaintiffs submit that the defendant’s initial affidavit of discovery was misleading or likely to mislead. It did so by referring to documents not discovered because they were said to be not relevant. The plaintiffs submitted that subjectively they relied on the representation although the affidavits relied on did not depose to placing any such reliance on the phrase. Fundamentally, the submission is that I should (and the plaintiff’s advisors did) read the deponent’s assertion that the documents are not relevant as being an assertion that documents of that type had been reviewed and their content determined not to be relevant. In my view, this is an unlikely interpretation in the circumstances.
From the disclosure of the documents regarding the complaint by IHC5, an inference would be easily drawn that pleadings and documents such as medico-legal reports from the 1998 claim exist and might bear on what IHC told the school principal in or around 1974. The fact that the affidavit refers to the existence of other such documents, many of which would be likely to be held in archives by firms of solicitors and not readily accessible, does not suggest that all such documents have been reviewed as to their content. To interpret it in this way would assume a most extensive search, including a search of documents held in the archives of third parties. Objectively this is unlikely. There was no suggestion that such an extensive search was required to meet the obligation to conduct a reasonable search. The subsequent letter seeking further and better discovery made no comment as to the existence of defences or subsequent pleadings, there was no demand that a search be made of such documents or challenge to the asserted lack of relevance of such documents created as a result of those complaints.
There is no explanation for why the discovered statement of IHC5 did not inform the particulars provided by the plaintiff by letter in August 2021 or why amendments pleading as a particular of knowledge the information contained in that document did not occur until 27 April 2022. The importance of the documents, particularly the 2017 statement of IHC5, seems to have been overlooked by the plaintiffs’ advisors until the eve of trial when CCI documents brought to light other documents including those in which IHC5 had repeated the same representation.
The fact that the representation of IHC5 was disclosed in June 2021 by the discovery of the initial contact report makes the repetition of that representation in other documents on other occasions less likely to be critical documents in their own right. The complaint report by IHC9 disclosed in the CCI documents was not contained in the discovered statement of IHC9.
Nor does it follow that because the later affidavit of documents identified further documents, the earlier affidavit was not correct and therefore misleading. If that were so, then any subsequent affidavit of documents would demonstrate the misleading nature of the first. Affidavits disclose documents identified by reasonable searches and subsequent affidavits disclose the product of later and often more diligent searches or documents responsive to amendments to pleadings. I do not accept that the first affidavit was misleading because it said the defendant had no other relevant documents because at a later time other relevant documents were disclosed. I consider this consistent with a party’s ongoing obligation to make discovery.
The obligation under rule 29 of the Rules is to discover documents in the ‘possession, custody or power’ of a party. This is supplemented by the obligation to disclose the existence of certain documents in the ‘possession, custody or control’ contained in s 26 of the Act.
In response to the amended pleading of prior complaints by IHC5 and IHC9, the solicitor for the defendant reviewed the archived files held by the defendant including those pertaining to IHC5 and IHC9 and conducted an interview with the relevant principal of St Joseph’s College in Geelong. Ms Kemp’s affidavit confirmed that none of the documents produced by CCI were held in the defendant’s own records.[68] Accordingly, its discovery had not overlooked relevant documents in its custody. The question of whether they are in the possession or power of a party turns on whether the defendant has a right to possession, or has documents in its power or control.
[68]Affidavit, ‘Affidavit of Vanessa Kemp’, Valentini (a pseudonym) v Trustees of the Marist Brothers, S ECI 2020 01513, sworn on 23 May 2022, [64]-[65].
‘Power’ in this context has been formulated by Lord Diplock to mean:
A presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else.[69]
Conversely a document is not within power if the right to inspection requires the consent of the party holding the document. Nor is a party compelled to take steps to obtain a present enforceable legal right. As such medical records of a patient held by various practitioners are not within the power of the patient.[70] Taxation documents, originally documents of the taxpayer, in the hands of the Australian Taxation Office, may result in a taxpayer having an enforceable legal right and discovery may be ordered if on request permission was likely to be given.[71]
[69]Lonrho Ltd & Anor v Shell Petroleum Co Ltd & Anor [1980] 1 WLR 627.
[70]Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123.
[71]Palmdale Insurance Ltd (in liquidation) v L Grollo & Co Pty Ltd [1987] VR 113.
I accept that the documents held by an insured and those held by its insurer will not always be identical. There will be many reasons why this might be so. The plaintiff submits that the distinction between defendant and insurer is artificial and therefore the obligation on the defendant is to discover documents held by the insurer. In my view, this submission take too broad a view of a defendant’s discovery obligation. The relationship between an insured and its insurer is a contractual one. The insurer is not a party to the litigation. Its obligations are measured by its power to control the proceeding. What is required to discharge those obligations is not necessarily identical with that of its insured as a party. The submission that the defendant is in breach by not having discovered or disclosed the documents held by its insurer glosses over the question as to what documents might be within the power of the insured to inspect.
A practical example of this is demonstrated by CCI’s production in this case in answer to the plaintiff’s subpoena. Production included documents relating to Coffey’s time with the Salesian order. It was not explained how such documents could be in the defendant’s possession, power or control, nor how it might have been aware of their existence. Many of the documents identified as coming to light only through answering the CCI subpoena are not Marist documents at all. Of the eight documents identified[72] above only one related to the Marist brothers, the remainder relate to Coffey’s time in the Salesians and were relied on to criticise the production by the Salesians to a subpoena addressed to it.
[72]At [57]-[60] above, documents from the court file to join Brother Stanislaus to the IHC5 proceeding related to Marist documents.
The Court has power, buttressed by s 55 of the Act, to require a party to take steps to obtain particular documents not presently in its possession, power or control. In Hanks v Johnston (No 2),[73] John Dixon J ordered a plaintiff to use software to access backups of deleted text messages from the Apple iCloud in a defamation action. The defendant who was seeking the discovery was to provide the necessary software.[74]
[73]Hanksv Johnston (No 3) [2016] VSC 629.
[74]Ibid.
While it might be appropriate in certain circumstances to order a party to take particular steps to obtain from its insurer documents that are not and never have been in its custody, the simpler and usual course is for either party to subpoena such documents. This is what occurred. The plaintiffs have not demonstrated that the need to issue the subpoena to CCI was caused by some deficiency in the defendant’s discovery. Despite the matters recorded by Judicial Registrar Baker in the orders regarding the objections hearing, the plaintiffs relied on the CCI and defendant’s objection to the subpoena as demonstrative of a failure of the defendant to comply with its discovery obligation. I do not accept the submission for the reasons outlined above. The objections were withdrawn upon the identification of a legitimate forensic purpose.
The importance of discovery to the proper administration of justice in resolving disputes cannot be overstated. The adequacy of discovery is a common area of interlocutory dispute, and properly so within the broader context of other overarching obligations including the obligation to ensure costs are reasonable and proportionate. The judgment called for by the totality of the overarching obligations requires practitioners to give adequate consideration to the timely completion of all desired interlocutory steps before the listed trial date.
In this case, as can be seen by the agreed extensions to the pre-trial timetable, the parties were co-operative in identifying the steps they wished to take in preparation for mediation and those they wished to postpone until after mediation. Presumably, this agreed timetable was informed by judgments as to overarching obligations regarding costs, delay, narrowing of the issues in dispute and using endeavours to resolve the dispute. There may well be good reason why the CCI subpoena was only issued five weeks before trial, but in my view the timing of that step was the root cause of the documentary difficulties that plagued the commencement of the trial. If the outcome of mediation is to be a ‘bright line’ in terms of the efficient timing of steps for trial preparation, then it is imperative that the mediation is held with sufficient time for the steps that are to occur after mediation and prior to trial.
No breach in respect of discovery obligations has been made out.
Disruption to the trial
The allegation that the disruption caused by the withdrawal of counsel was a breach of the paramount duty to the Court is a serious allegation. The breach was said to be because the reason for the withdrawal was unexplained. The breach is that of the defendant. Essentially, I am being asked to infer a breach has occurred in the absence of explanation.
Senior Counsel for the defendant explained the reason for the application to withdraw. It was an application made in discharge of her overarching obligation to the Court because counsel could not continue in the case and responsibly discharge their professional obligations. The position was arrived at after independent advice was obtained. I accept unreservedly that in doing so counsel were acting in accordance with their paramount duty to the Court. Mr Campbell accepted there would be good underlying reason.[75] There was no suggestion in the submissions that any of the legal practitioners had breached their paramount duty to the Court. The reason for coming to that position is privileged and the legal professional privilege is maintained. While the need for counsel to withdraw and the process of briefing alternate counsel did cause delay in the commencement of the trial I am not satisfied that a breach of its paramount duty to the court by the defendant has been made out.
[75]Transcript 26.30.
Special costs order
I have found the breaches alleged are not made out. There is therefore no cause to consider whether (as a matter of discretion) I should impose a sanction by way of special costs orders pursuant to s 29 of the Act.
However, the withdrawal of counsel did cause disruption and some delay to the commencement of the trial. I have a general discretion regarding costs and the plaintiffs urge that they should not be ‘out of pocket’ for the period from 27 April 2022 until the resumption of hearings on 13 May 2022 or alternatively, to the further judicial mediations that occurred on 9 May 2022. Had the withdrawal led to an adjournment, the plaintiff would have been entitled to their costs thrown away by reason of the late withdrawal and consequent adjournment. If that occurred the costs thrown away would likely be those days between 27 April 2022 and the eventual adjournment. As not adjournment was sought, the critical question is whether the plaintiffs have been put to additional expense by the delay such that indemnity costs should be ordered for some or all of the period of delay.
I accept, as was said by all counsel from the bar table, that the time could be and was usefully used to progress the matters and narrow the issues in dispute.[76] The defendant briefed Senior and Junior Counsel so that the judicial mediation desired by the parties could proceed and briefed different Senior Counsel to prepare in the event that matters proceeded to trial. In doing so, it avoided any need to adjourn the trials. The trials were listed to commence on 26 April 2022 with an estimated trial length of 15-20 days. Ultimately, all five matters were resolved within that trial estimate. I do not accept that the plaintiff’s legal practitioners were sitting ‘on standby’ awaiting the defendant’s convenience as was submitted. Rather I accept that all legal practitioners involved worked tirelessly to progress matters in the unusual and difficult circumstances.
[76]Transcript 2.6, 42.30, 46.23.
I accept the submission that the work done in the trial period will be adequately compensated by a standard costs order and appropriate certification of counsel fees for all hearing days, from 26 April 2022 until settlement of the last matter whether or not actually in Court. The costs should be on a standard basis, and treated no differently to the remainder of the proceeding. I will hear the parties on the terms of the orders to be made.
6
3
0