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Skarbek v The Society for Jesus in Victoria & Ors (No 2) [2016] VSC 748 (7 December 2016)

Last Updated: 9 December 2016

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURY LIST

S CI 2015 06439

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COSTS "� Question of costs in relation to section 32C application "� Section 32C application a necessary step in pretrial discovery process "� Both parties partially successful "� Parties"� costs be their costs in the proceeding.

PRACTICE AND PROCEDURE "� Discovery of documents "� Allegations of abuse against students by other staff members and clergy "� Pleadings refer to the failure of the defendants to have in place proper protocols and procedures to prevent abuse against students "� Documents sought by the plaintiff are relevant and discoverable "� Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573 applied.

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HER HONOUR:

1 On 26 October 2016, I delivered my judgment with respect to the defendants"� application by summons filed on 26 September 2016 ("�section 32C application"�). The background to the proceeding and the issues in the application are canvassed in some detail in the reasons for judgment.[1]

2 Following considerable efforts by the parties to narrow the issues in dispute, there remained five matters to deal with at the hearing on 30 November 2016:

(a) the costs of the s 32C application ("�costs issue"�);

(b) the plaintiff"�s application that the defendants discover documents relating to allegations of abuse perpetrated by other staff members at Burke Hall during the period from 1 January 1967 to 31 December 1972;

(c) the defendants"� application for the production of emails between Dr Pearce and the plaintiff"�s former solicitor. Some of this correspondence also included the plaintiff. The plaintiff has claimed privilege under s 118 of the Evidence Act 2008 (Vic);

(d) the plaintiff"�s application to redact some parts of documents in the possession of the solicitors acting for the plaintiff in the County Court proceeding ("�solicitors"� files"�), over which the plaintiff had, but has now waived, a claim for legal professional privilege, on the grounds that the redactions mask confidential but otherwise irrelevant material; and

(e) the defendants"� application for production of records of communications between the plaintiff and Mark Fabbro.

3 The applications in paragraphs (c) to (e) above are to be resolved by me inspecting the documents in order to determine:

(a) whether the plaintiff"�s claim for legal professional privilege under s 118 of the Evidence Act 2008 (Vic) is maintainable in respect of each of the documents concerned;

(b) whether the plaintiff"�s proposed redaction to the documents in the solicitors"� files are appropriate; and

(c) whether any of the communications between the plaintiff and Mr Fabbro are relevant to any issues in the proceeding.

4 The outcome of the inspection will be the subject of a separate ruling.

Costs of the s 32C application

5 In relation to the costs issue, counsel for the plaintiff submitted that as the plaintiff was successful in resisting production of the vast majority (95 per cent of the pages) of the Later Notes, the plaintiff ought have his costs, and that those costs should be payable forthwith. If there were any basis for the apportionment of the costs on the basis of the issues in the proceeding, then any such apportionment should be based upon the relatively limited number of documents ultimately ordered to be produced.

6 Counsel for the defendants submitted that the defendants were ultimately successful in compelling the production of those parts of the Later Notes which were deemed necessary for the defendants have access to in order to have a fair trial. The plaintiff resisted producing any of the Later Notes, and as such, the defendants ought have their costs of the s 32C application.

7 The relevant background can be summarised as follows:

(a) on 26 September 2016, the defendants issued the s 32C application. The summons sought production of Dr Pearce"�s entire file;

(b) by the time of the hearing on 14 October 2016, the solicitors for the plaintiff agreed that the defendants"� solicitors may inspect the documents on the file save for:

(i) the Later Notes;

(ii) emails Dr Pearce exchanged with the plaintiff"�s former solicitors; and

(iii) the audio tapes.

8 In relation to (ii) above, the question of whether the plaintiff can resist inspection of these documents will be determined by me in the course of my inspection of those documents. As for the audio tapes, the plaintiff reserved his position until his solicitors had the opportunity to listen to them. The fiercest resistance to the defendants"� application for production in fact came from Dr Pearce, and ultimately, I ordered that the audio tapes be produced. However, these matters do not materially affect my determination of the costs issue.

9 The substantial dispute in the s 32C application was whether the defendants ought to be able to inspect the Later Notes. The plaintiff resisted production of the Later Notes on the following bases:

(a) the Later Notes were confidential, and recorded sessions between the plaintiff and Dr Pearce which were therapeutic in nature. They were not prepared for briefing Dr Brann, or the claims process;

(b) the plaintiff had a reasonable expectation that the Later Notes would remain confidential;

(c) the Later Notes contained references to deeply personal matters, including matters concerning his partner and children, and disclosure of the Later Notes to the defendants would cause him distress, and possibly, psychological harm; and

(d) the defendants already had access to voluminous medical material in order to defend the claim at trial.

10 The defendants submitted that the Later Notes ought to be produced, on the basis that the plaintiff, by providing to the defendants reports and other documents prepared by Dr Pearce as part of the claims process, had waived any right to maintain any confidentiality.

11 The conduct of the plaintiff relied upon by the defendants as said to amount to waiver is as follows:

(a) by issuing this proceeding, the plaintiff has brought allegations of abuse into this proceeding, and as the Later Notes and other records bear directly on the circumstances of the allegations, Dr Pearce"�s full file must be produced;

(b) any privilege in the whole of Dr Pearce"�s file has been waived by the use of some of Dr Pearce"�s notes and reports under either common law principles of waiver or under ss 122 and/or 126 of the Evidence Act 2008 (Vic). That is, by disclosing part of Dr Pearce"�s file, the plaintiff has acted inconsistently with the maintenance of confidentiality in the balance of the file; and

(c) as the plaintiff"�s solicitors have served the 12 October and 7 January reports, which were prepared by Dr Pearce, any documents held by Dr Pearce that relate in any way to those reports and their preparation must be disclosed.

12 Further, the defendants also submitted that the Later Notes fall within the terms of s 32E(1)(c) of the EMPA, as they were prepared for the purpose of legal proceedings arising from the commission or alleged commission of a sexual offence.

13 The defendants submitted in the alternative, that if principles of waiver did not apply, I should grant leave under s 32D of the EMPA, as the Later Notes were critically relevant to the issues in the proceeding, and in particular, causation. The expert psychiatrist briefed by the defendants required a full history prior to conducting a medicolegal assessment. Further, the defendants submitted, over the objection of counsel for the plaintiff, that I should inspect the Later Notes myself in order to determine whether the allow inspection by the defendant of part or all of the Later Notes.

14 In the judgment delivered on 26 October 2016, I found that:

(a) the plaintiff had not waived any confidentiality in the Later Notes, or, in the language of s 32E of the EMPA, impliedly consented to the disclosure of the Later Notes, on any of the bases contended for by the defendants, such that it was necessary to undertake the balancing exercise under s 32D of the EMPA;

(b) while I accepted that requiring the disclosure of the Later Notes might cause the plaintiff and other family members some distress and harm, I rejected the contention advanced on behalf of the plaintiff that the weight of this evidence meant that I should not even inspect the Later Notes; and

(c) upon inspection of the Later Notes, I determined that there were twenty file notes which recorded communications which were of substantial probative value to the issues in the proceeding, and that their probative value outweighed the likely harm to the plaintiff of their disclosure. The twenty file notes were, in volume terms, a relatively modest fraction of the Later Notes.

15 The question of costs of the s 32C application is therefore far from straightforward. There has been extensive correspondence between the parties regarding the inspection of Dr Pearce"�s file, and in particular the Later Notes. Both parties advanced positions in correspondence and in the hearing before me which were not, in all of the circumstances, unreasonable to adopt.

16 The principles concerning the award of costs in civil litigation have been conveniently summarised by Robson J in GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3), as follows (citations omitted):[2]

1. The award of costs is in the discretion of the Court or Judge: s 24 Supreme Court Act 1986.
2. The discretion must be exercised judicially: Donald Campbell & Co v Pollak; Cretazzo v Lombardi.
3. The discretion cannot be exercised arbitrarily or capriciously and it cannot be exercised on grounds unconnected with the litigation: Cretazzo v Lombardi; or the circumstances leading up to the litigation: Oshlack v Richmond City Council.
4. Costs are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. The order is not made to punish the unsuccessful party: Latoudis v Casey.
5. As a general rule, costs should follow the event, and a successful party should obtain all of the costs of the action even though it failed to establish some of the alternative heads of its claim: Ritter v Godfrey; McFadzean v CFMBEU.
6. Rule 63.04(1) permits the court, in its discretion, to make an order not only as to a distinct question or issue in the pleading sense, but also to any part of the proceeding: Woolf v Burmon; Cretazzo v Lombardi.
7. The court may, in its discretion, decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff failed to establish discrete heads of claim or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim: McFadzean v CFMBEU.
8. It is not necessary that the issue concerned was raised unreasonably by the party: Rosniak v GIO. Although, a relevant consideration may include whether the issue was raised unreasonably: Mickelberg v Western Australia.
9. The court may, in its discretion, make an order that is a single order, fixing what proportion of a party"�s costs should be paid by another party, thus obviating cross-orders or particular orders as to particular costs: Byrns v Davie; McFadzean v CFMBEU; Nolan v Nolan.
10. The caveat referred to by Jacobs J in Cretazzo v Lombardi may have less weight today than when it was decided: Primcom Pty Ltd v Sqarioto; Mickelberg v Western Australia; and Victoria v Master Builders Association of Victoria.
11. Although the quantum of damages recovered compared to that claimed may be a relevant consideration to the court in exercising its discretion, greater emphasis should be given to the failure or loss on discrete claims or issue and the time occupied in relation to them.

17 The decision of Robson J referred to above predated the introduction of the current version of rule 63.20 of the Supreme Court (General Civil Procedure) Rules 2015, which provides that:

Where an interlocutory or other application is made in a proceeding and"�

(a) no order is made on the application; or

(b) the order is silent as to costs"�

The costs are the parties"� costs in the proceeding.

18 Notwithstanding the above, it is still a widespread practice in this Court that in the ordinary course costs will follow the event. Accordingly, the principles set out above are still relevant.

19 In the current case, the difficulty is not so much in apportioning the costs associated with particular issues in the application, but in determining which party was successful. As I indicated during the course of the hearing, a submission to the effect that the defendant was allowed to inspect only five per cent of the Later Notes reflects a somewhat crude approach to the costs issue. Certainly, the volume of pages comprising the relevant documents was relatively modest. However, given the test in s 32D of the EMPA, the relevant documents are documents where I have formed the view that they are documents which have substantial probative value to the issues in the proceeding. As such, the forensic value of the relevant documents is likely to far outweigh their bulk. On the other hand, the defendants were entirely unsuccessful in their arguments concerning the plaintiff"�s alleged waiver of confidentiality, and the plaintiff was therefore successful in resisting production of the substantial part of the Later Notes.

20 Accordingly, having regard to the outcome of the application, the success of the parties on different issues, the nature of the orders I made with respect to the audio tapes, and the maintenance of a limited access regime in respect of the relevant documents, the most just outcome in relation to the costs issue is that the parties"� costs of the s 32C application be their costs in the proceeding. This is consistent with the approach suggested by the authors of "�Williams "� General Civil Procedure"�,[3] who state:

If the circumstances in which an application is determined and such that it is not then possible to see on which side justice requires that the costs of that step should certainly fall, the proper order may be to make the costs "�costs in the proceeding"� or to "�reserve the costs"�.

21 In the current case, the making and determination of the s 32C application was a necessary step in the pre-trial discovery process, such that the proper order is that costs ought be in the proceeding. This is also a reason why, had I made a costs order in favour of the plaintiffs, I would not have made an order that the costs be payable forthwith.[4]

Discovery

22 The defendants resisted discovery of the documents referred to in paragraph 2(b) of this ruling on the basis of relevance. Counsel for the defendants submitted that it is not part of the plaintiff"�s pleaded case that there was an "�apparent culture of violence and intimidation at Burke Hall in and around the early 1970s"�, as contended for by counsel for the plaintiff in his written submissions. If I were to allow the scope of discovery to be extended in the manner sought by the plaintiff, the scope of discovery would be endless. Further, it was submitted that it is apparent from the plaintiff"�s own submissions that the plaintiff is attempting to fish for evidence that there was a system or established pattern of abuse at Burke Hall, which would only go to credit in the absence of any pleading to that effect.

23 Counsel for the defendants relied upon the recent decision of J Forrest J in Volunteer Fire Brigades Victoria v CFA (Discovery Ruling)[5] ("�CFA case"�) in support of his submissions that discovery must be focussed upon the real issues at trial, not peripheral issues. Further, he noted that in Mahlo & Ors v Westpac Banking Corporation and Anor[6] ("�Mahlo"�), which concerned a proceeding brought by a former customer of the defendant bank in a proceeding alleging that a bank officer made certain misrepresentations to him. The plaintiff"�s application that the bank discover documents evidencing representations made by that bank officer to other customers of the bank was dismissed. In that case, Santow J held that such documents could not satisfy the test of relevance under the Evidence Act 1995 (NSW), and further, the probative value of the material was so slight as to be substantially outweighed by the prejudicial nature of the material, such that it would fail the test for admissibility as propensity or tendency evidence. A similar decision was made by Foster J in Re Elders Australia Ltd; Super John Pty Ltd and ors v Futuris Rural Pty Ltd.[7] Mahlo was referred to with apparent approval by Riordan J in North West Supermarkets Pty Ltd v Leasing Centre (Aust) Pty Ltd,[8] where his Honour stated as follows (omitting footnotes):[9]

I do not want to be read as saying that, unless there is a specific particular, a party is not obliged to discover documents which are plainly adverse to its case. However, without some specific point of relevance, prior complaints arising out of related but different circumstances may not, in general, be discoverable. Plainly each case will be determined by reference to its own facts and pleadings but I note the following considerations of the relevance of prior complaints by courts.

(a) in Thorpe v Chief Constable of the Greater Manchester Police, the Court of Appeal found that, in a claim against an arresting officer for assault, documents relating to whether the arresting officer had used excessive violence when arresting other persons on other occasions were not relevant.

(b) In GE Capital Corporate Finance Group Ltd v Bankers Trust Co, Dillon LJ said in obiter that, in an action for damages for professional negligence against a solicitor, evidence as to other claims in negligence made or established against the defendant by a client in respect of other matters would not be relevant or admissible.

(c) In Mahlo v Westpac Banking Corporation, Santow J considered an application for discovery in a claim made by a customer of the defendant bank, who conducted business at the defendant"�s Forbes branch. The plaintiff sought discovery of documents containing statements by the Forbes branch, which were similar to the statements referred to in the statement of claim. The court rejected the application on the basis that such evidence was not relevant and, as it could not establish a system or established pattern, it could not be introduced as propensity or tendency evidence.

24 In this case, his Honour rejected the contention that a party"�s failure to discover records relating to other complaints made to it concerning the terms of its contracts warranted overturning a judgment given in the Magistrates"� Court in that party"�s favour.

25 The written submissions of counsel for the plaintiff in support of his application are reproduced below (omitting footnotes):

The plaintiff submits that the defendants have also applied an unduly restrictive test of relevance when deciding whether to produce documents relating to Other BH Allegations.

Some of the documents produced in the proceeding to date include records of or relating to Other BH Allegations. Further, information both on and off the public record strongly indicates that there are additional documents relating to Other BH Allegations. For example, the current Principal of Xavier College, Dr Chris Hayes, has publicly acknowledged that there are at least 15 victims or alleged victims of abuse dating from the 1960s and 1970s.

The plaintiff submits that documents relating to Other BH Allegations are relevant and ought to have been discovered. At the least, such documents would or could "�adversely affect"� the defendants"� case.

If, for example, such documents revealed that allegations or complaints of abuse had been made against other members of staff at Burke Hall during the relevant period, and that many of or all those complaints had been accepted or verified, then that would constitute evidence in support of an inference that the school authorities knew, or should have known, that abusive conduct against students was occurring at the time.

Such evidence may well justify a finding that there was a culture of violence, abuse and intimidation at Burke Hall during the relevant period. Such a finding would transform the questions about the defendants"� knowledge of the abuse "� rather than depending mainly on an accretion of inferences from specific incidents, a global inference would become available that the defendants permitted or facilitated a system in which abuse of students was tolerated and ignored and complaints about such abuse were discouraged and dismissed. In that scenario the onus of proof would, to some degree, shift to the defendants to establish how, in the circumstances, they did not know about the abuse or the risks of such abuse occurring.

In the circumstances, such documents will or may advance, directly or indirectly, the plaintiff"�s case, or damage the case of the defendants.

26 In my view, the defendants ought to discover the documents sought by the plaintiff concerning allegations of abuse at Burke Hall within the period identified by the plaintiff. While the plaintiff"�s statement of claim does not refer expressly to there being a system or pattern of abuse at Burke Hall, the statement of claim does plead that by reason of their functions and duties, it was reasonably foreseeable by the defendants that the plaintiff would suffer loss and damage if they, or any of them, breached their duties to the plaintiff. Further, paragraphs 53 and 54 of the statement of claim state as follows:

53. By reason of paragraphs 5 "� 12, 13 "� 18, 19 "� 21, 46 "� 47 and 49 "� 51 herein, the matters pleaded in paragraphs 22 to 46 herein were caused by the negligence of the Society of Jesus, and/or the Institute, and/or the Trustees or their employees, servants or agents.

PARTICULARS OF NEGLIGENCE

1. Failed to take reasonable care to prevent harm to students, including the Plaintiff;
2. Failed to ensure staff at Burke Hall, including Byrne and Casey, were fit on account of character and conduct;

100. Failed to institute systems or protocols that would deter the behaviours of Byrne and Casey set out in paragraphs 22 to 45 herein, or render them accountable for those behaviours;

4. Failed to deter misconduct by conducting random inspections;
5. Failed to ensure that teachers were prohibited from seeing a pupil without the presence of another teacher;
6. Failed to ensure that teachers did not see students in teachers"� private quarters or offices; and
7. Failed to encourage teachers and pupils to complain to school authorities about any signs of aberrant or unusual behaviour.

Vicarious liability

54. By reason of the above, the Society of Jesus and/or Institute and/or the Trustees are vicariously liable for the conduct of Byrne and Casey as pleaded in paragraphs 22 "� 45 herein.

27 It is correct that the "�knowledge"� of the defendants referred to in paragraph 49 of the statement of claim is limited to the duties owed by them to the plaintiff, the positions and duties of Fr Byrne and Mr Casey, and the circumstances of Fr Byrne"�s departure from Burke Hall. However, the defendants deny the allegations in paragraph 53 of the statement of claim, which are essentially allegations to the effect that the defendants did not have in place proper protocols and systems to protect students at Burke Hall.

28 I also accept the contention that the test for discovery is more liberal than the test for admissibility of evidence. That point was made in the CFA case, where J Forrest J stated that:[10]

Discovery is not concerned with admissibility: it is a part of the fact finding exercise in betting a case to trial. Indeed, often discovery may lead to a train of inquiry not confined to the tender (or putative tender) of a particular document in the course of a trial ...

One thing is clear: it is not for this Court on an interlocutory application to determine whether a potentially discoverable document will or will not be admissible at trial: that is the function of the trial judge.

29 To some extent, the statement of J Forrest J in the CFA is at odds with the approach adopted in the authorities relied upon by the defendants, where the scope of discovery was determined by reference to the likely admissibility of the evidence likely to be discovered by the parties. However, in Mahlo, Santow J recognised the difficulties in forming a decided view about the likelihood of propensity evidence being admissible at the discovery stage of the proceeding, as follows:

When one turns to the particular evidence here, there are two matters in some tension to be weighed up. On the one hand, at the point of time of discovery one cannot be confident that one has before the Court all of the context which will ultimately determine whether the particular evidence is relevant, or would have significant probative value. That consideration enjoins caution in precluding discovery at so early a stage.

On the other hand, where the discovery is likely to be onerous and the Judge can confidently see, even at that stage, that the nature of the evidence is simply intrinsically incapable of having any probative value, in the sense of being able rationally to affect the assessment of the probability of the existence of a relevant fact in issue, or otherwise lacks significant probative value, then the Court should not be reluctant to limit discovery. S132 of the Evidence Act 1995 (NSW) ("�the Act"�) may in appropriate cases also be called in aid in the second case. Unless courts take such an approach, though treating the interests of justice as necessarily paramount, court processes will become unnecessarily expensive and onerous and be clogged by a mountain of unnecessary material.

30 His Honour also referred to an extract of the decision in Thorpe v Chief Constable of Greater Manchester Police[11] in which Dillon LJ referred to instances where evidence of what occurred in one transaction were held to be relevant to the question of what happened in another, such as evidence of complaints from other customers in a case involving the supply of defective goods, and:[12]

[I]n an action for damages for negligence which has caused personal injury, evidence that to the defendant"�s knowledge there had been similar previous accidents in the same premises to other persons would be relevant to show the defendant"�s knowledge of the risk, and discovery of complaints of these previous injuries would be relevant.

31 The authorities illustrate the tension between ensuring all potentially relevant material is disclosed during the discovery stage, and the need to confine the scope of discovery within reasonable bounds. It is difficult to identify where the line is to be drawn, and the authorities emphasise that the outcomes of these applications are very dependent upon the particular factual circumstances of each case. In my view, the way in which the authorities can be reconciled is that while the scope of discovery will be informed by considerations of admissibility at trial, it is not confined by it. However, one must not lose sight of the established principle that the scope of discovery must be confined by the pleadings. In my view the pleadings sufficiently raise the question of the defendants"� knowledge of allegations of abuse by staff and clergy of students at Burke Hall, such as to make the documents sought by the plaintiff relevant and discoverable.

32 In the current case, there is evidence that there have been other allegations of abuse at Burke Hall. The current principal of Xavier College has admitted as much. There is other evidence to show that there is likely to be documents concerning complaints against other clergy and staff members in existence. In my view, the claims made by the plaintiff in the current place are more analogous to that of a worker alleging that an employer breached its duty to maintain a safe workplace, than that of a client making claims against a solicitor, or of a patient of a surgeon in a hospital seeking details of complaints against other surgeons operating in that hospital. Finally, I accept that the documents sought by the plaintiff may adversely affect the defendants"� case at trial.

33 I shall hear further from the parties on the form of orders, the question of costs, and future directions for the conduct of the proceeding.

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SCHEDULE OF PARTIES

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^[1] [2016] VSC 622. The references to the parties and defined terms in these reasons mirror those in the reasons delivered on 26 October 2016.

^[2] [2008] VSC 296 [59].

^[3] At [63.20.10].

^[4] See Setka v Abbott MP (No 2) [2013] VSCA 376.

^[5] [2016] VSC 573.

^[6] (unreported, Supreme Court of New South Wales), Santow J, 21 November 2016.

^[7] [1998] FCA 1377.

^[8] [2015] VSC 212.

^[9] At [53].

^[10] At [40].

^[11] [1989] 1 WLR 665.

^[12] Ibid, 669.

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