With thanks to Charles Harrison for drawing attention to Di Cesare v Bird & Anor [2021] VSC 25 (on AUSTLII), a hearing de novo following an earlier decision of a Judicial Registrar as to whether a subpoena issueed by a plaintiff served a legitimate forensic purpose.
The subpoena sought documents from an insurer for the Diocese of Ballarat, in respect of six categories of documents relating to sexual abuse committed or allegedly committed by a former Catholic priest. In the lead up to or at the hearing, the plaintiff narrowed the description of the documents souught.
The Court held that subject to revision of the wording of some categories of documents, the subpoena should stand and the insurer should produce documents to the Court. The Court held:
38 The plaintiff’s negligence case is not so narrow as CCI’s submissions suggest and is not based solely on proof that the diocese knew or ought to have known that Claffey was a paedophile. The pleadings raise more generally the alleged duty to protect the plaintiff from sexual abuse by diocesan priests, the foreseeability of the risk of harm to the plaintiff from sexual abuse by Claffey and, in relation to breach, issues of training, supervision, instruction, reporting, education and the systems which allowed Claffey to regularly have unsupervised access to children. Documents within category 1, and probably category 2, may assist in showing that Claffey had a history of isolating children in his care, and how children responded to that experience. The circumstances in which other children were abused by Claffey before November 1984 may show how it was he was able to gain access to and isolate children and whether there were diocesan procedures and systems which authorised or allowed this to occur, or that Claffey did so pursuant to his authority and power as a priest in the diocese. Those documents may be relevant to foreseeability of risk and the content of the duty owed to the plaintiff by the diocese.
39 Documents in all categories may be relevant to the systems, procedures and laws which governed the operation of the diocese and regulated the activities of priests and their interaction with children. The plaintiff may be able to use documents in all categories to assist to prove breach by establishing that there were systemic deficiencies by the diocese in supervision, instruction, training, reporting, education or access by Claffey to children, which were a cause of the abuse.
40 Documents in categories 2 and 5 may assist in showing what precautions were available to the diocese to guard against the risk of priests sexually abusing and injuring children, and the likelihood that taking those steps would prevent abuse occurring. The number of incidents of abuse by Claffey before November 1984, and the harm suffered by victims, may be relevant to the seriousness of the risk of harm to children from him, and the probability of the risk eventuating.
41 Debate in the subpoena objection focused on the negligence case. However, there will be documents in each category relevant to vicarious liability, in particular whether the apparent performance of his role as priest provided the occasion for Claffey to abuse children, and the authority, power, trust, control and ability to gain intimacy with the plaintiff that was assigned to Claffey as a diocesan priest.
42 The first defendant has not formally admitted that the plaintiff was abused as he alleges. While it may seem unlikely, given the admissions which have been made, that there will be significant dispute about whether the abuse occurred, it is unclear what position the first defendant will adopt at trial. It is possible the first defendant will leave the issue of abuse to be proved by the plaintiff even if he does run hard on the issue. Until the abuse is conceded the plaintiff is entitled to prepare his case to prove it. Documents in each category may allow the plaintiff to lead tendency evidence, and thereby assist in proving the abuse.
43 The plaintiff’s claims for aggravated and exemplary damages are in issue. If he can establish that the diocese knew of Claffey’s history of offending before November 1984, turned a blind eye to facts and circumstances which would have led to such knowledge, or acted in reckless disregard of the plaintiff’s welfare by allowing Claffey to have isolated access to him, the plaintiff may be entitled to an award of exemplary damages and, if he can show that the conduct of the diocese increased his suffering, aggravated damages. There is a reasonable possibility documents responding to category 1, and possibly category 2, will materially assist the plaintiff to prove his damages claim. It is less clear that documents in categories 4 and 5, which relate to abuse of other children after the plaintiff was abused, are relevant and would be of material assistance.
44 I conclude that there is a legitimate forensic purpose for the four subpoena categories. There is a reasonable possibility that the documents sought will materially assist the plaintiff’s case, and will be relevant to the issues in dispute.