On 16 November 2020, the plaintiff filed and then served a Subpoena to Produce upon the defendant in these proceedings. The plaintiff issued a similarly worded Notice to Produce to the defendant on 10 March 2022. By Notice of Motion filed 2 May 2022 the defendant seeks orders pursuant to r 33.4(1) that the Subpoena and Notice to Produce be set aside.
Since the Notice of Motion was filed, the parties have resolved all issues with respect to the production of documents, except those relating to paragraph 8 of each of the Notice to Produce and Subpoena. Since these two documents are in identical form, it is sufficient for me to simply refer to the Subpoena throughout this judgment.
[2]
Modified Paragraph 8 of the Subpoena
Further discussions between the parties have led the plaintiff to limit paragraph 8 in the following way:
"All documents relating to any complaints, allegations, charges and/or convictions into sexual abuse allegedly carried out by any serving Marist Brother, including Novitiates and Temporary Professed Brothers in the State of NSW, prior to and including the year 1978."
The significance of the year 1978 is that the plaintiff claims he was sexually abused during 1977 and 1978 whilst a student at Marist Brothers High School at Lismore.
Objection is taken by the defendant to the paragraph on a number of bases. First, that there is no legitimate forensic purpose for the documents sought. Second, that the terms of the paragraph are too wide, both as to time and location and the fact that documents are sought from other schools than the school at Lismore which is in issue in these proceedings.
As well, objection is taken on the basis of the vagueness and uncertainty of the description of the documents which are sought.
[3]
Submissions
The plaintiff submits that the legitimate forensic purpose of the requested documents can be discerned from parts of the Statement of Claim. First, the plaintiff submits that, when one has regard to the particulars of the breach of duty of care alleged by the plaintiff against the defendant (in paragraph 42 of the Statement of Claim) it can be seen that these documents are relevant and have a legitimate forensic purpose in the proceedings.
The plaintiff identifies the following sub-paragraphs to paragraph 42: (a), (d), (g), (h), (i), (k), (l), (m), (o), (p), (q), (r) and (t). It is not inaccurate to summarise these particulars as going to allegations about failures with respect to a proper system which ought to have been in place in 1978 at the high school in Lismore operated by the Marist Brothers.
Secondly, the plaintiff submits that paragraph 8 is relevant to proof of the facts pleaded in paragraphs 26 to 31 inclusive of the Statement of Claim. The plaintiff submits that each of these paragraphs relates to the existence and proof of the risk of harm pleaded in this case, which is to be found in paragraph 20 in the following terms:
"At all material times, the defendant knew that the sexual abuse of a child by a form master and/or teacher would, in all likelihood lead to the plaintiff suffering psychiatric injuries."
Paragraph 21, the immediately following paragraph, is pleaded in the alternative to paragraph 20, to the effect that the defendant ought to have known that the sexual abuse of a child would in all likelihood lead to psychiatric injuries.
[4]
Discernment
The plaintiff's claim against the defendant derives from the conduct of two identified Marist Brothers who are said to have been the perpetrators of sexual abuse; one of whom was a Form Master at the school at the relevant time and the other of whom was a teacher at the school at the relevant time. The plaintiff pleads that the sexual abuse of him by each of these two perpetrators constituted a trespass to the person and a battery to the plaintiff, to which he did not consent. Clearly, if the particulars of the sexual and physical abuse which are pleaded in paragraph 12 are established, then they constitute a trespass to the person, commonly known as an assault, and also a battery.
The issue, however, is whether the defendant is either directly liable in negligence for the harm to the plaintiff or else vicariously liable for the tortious conduct of the perpetrators. The claim for vicarious liability depends upon the relationship which existed between the school authority on the one hand, i.e., the body entrusted with the operation of the high school at Lismore, being the trustees, and the two perpetrators on the other hand. In order to establish vicarious liability for the criminal conduct of the perpetrators, the plaintiff will need to demonstrate that such was the relationship between the defendant and the perpetrators, and such was the power and authority given to the perpetrators by the school authorities, that within the constraints of the legal principles of vicarious liability, the defendant ought be held vicariously liable for the conduct of the perpetrators.
It seems to me that the documents sought in paragraph 8 do not relate to, and could not relate to, the cause of action based on vicarious liability. To that extent, in considering that part of the plaintiff's claim, paragraph 8 of the subpoena has no legitimate forensic purpose.
However, as is apparent in the Statement of Claim, there is a claim for direct liability on the defendant for its failings in and about the management and conduct of the school. That is to say, as set out in the particulars which I have identified, that it failed to have any adequate system to protect students, including the plaintiff, from the risk of sexual abuse whilst attending the school; failing to have any adequate system to educate children at the school about the possibility of sexual abuse and what actions should be taken; and failing to institute or maintain any adequate system of child protection within the school. There are other particulars of negligence, but it is sufficient to say that these systemic allegations to some extent depend upon what the defendant did in a systemic way in the operation of the school.
Assuming it is established that the systemic failures occurred as pleaded, whether or not such failures constitute negligence is a matter which is judged by objective standards of reasonableness of like authorities at the time. It is not necessary to establish knowledge of the kind that would be revealed from the documents produced in paragraph 8 to directly address those systemic failures; rather, it will be a matter of comparison between those systemic failures and objectively reasonable standards at the time to be determined by the evidence which is given.
I do not accept the argument that paragraphs 26 to 31 of the Statement of Claim relate to the risk of harm which is pleaded in paragraphs 20 and 21. The pleaded risk of harm, in summary, was that if a teacher or form master sexually abused a school student, it would in all likelihood lead to the student suffering psychiatric injuries. It is an element of a claim under the Civil Liability Act 2005 s 5B(1)(a) that such risk of harm was foreseeable, i.e., the defendant either knew or, alternatively, ought to have known of it. The foreseeability of the risk of harm is addressed in paragraphs 24 and 25 of the Statement of Claim.
The defendant's knowledge or constructive knowledge pleaded in paragraphs 24(a) and 25(a) is that there was a risk of sexual abuse of children by form masters and other religious brothers or teachers at the school, namely the high school at Lismore. The knowledge which is to be proved is limited in that way.
In my view, the documents sought in paragraph 8 do not relate, as paragraphs 26 to 31 of the Statement of Claim suggest, to the risk of harm nor to the issue of foreseeability. Accordingly, I would not be prepared to allow paragraph 8 to stand and the Subpoena ought be set aside insofar as it relates to paragraph 8.
However, if I be wrong on this issue, in my view, the wording of the paragraph is vague, uncertain and unlimited in time, so that it is nothing more than an attempt to obtain access to all documents in a way which infringes the prohibition on the use of a subpoena as a fishing expedition.
Putting it differently, there has to be a likelihood, or else expressed as being that it has to be "on the cards", that the documents sought in paragraph 8 could possibly throw light on an identified issue. Having regard to the way in which the issues are pleaded, that is not apparent to me. As well, the terms of the subpoena, not limited in point of time, other than being prior to 1978, call for documents going back many, many, decades, if not more than a century. A subpoena addressed without any rational time limitation is far too wide.
In addition, the fact that the documents are described as "relating to complaints, allegations, charges and/or convictions" suggests that the recipient of the subpoena has to engage in an exercise of interpretation as to whether a document may or may not relate to any one of those suggestions. In my view, that wording is impermissible in a subpoena and I would not permit such wording.
[5]
Orders
For all of those reasons I am persuaded that I should make the following orders:
1. Order pursuant to r 33.4(1) of the Uniform Civil Procedure Rules 2005, that paragraph 8 (as modified) of the Subpoena to Produce issued by the plaintiff to the defendant on 16 November 2020 be set aside.
2. Order pursuant to r 33.4(1) of the Uniform Civil Procedure Rules 2005, that paragraph 8 (as modified) of the Notice to Produce to the Court issued by the plaintiff to the defendant on 10 March 2022 be set aside.
3. Order that the plaintiff pay the defendant's costs of the Notice of Motion of 2 May 2022 insofar as it relates to paragraph 8.
[6]
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Decision last updated: 15 August 2022