Herrick v Knowles

The law 9Uniform Civil Procedure Rule 33.8 provides: "33.8 Removal, return, inspection, copying and disposal of documents and things The court may give directions in relation to the removal from and return to the court, and the inspection, copying and disposal, of any document or thing that has been produced to the court in response to a subpoena." 10The relevant sections of the Evidence Act are ss 126A and 126B, which concern protected confidences. They relevantly read: "126A Definitions (1) In this Division: harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. protected confider means a person who made a protected confidence. protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence. (2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party's presence is necessary to facilitate communication. 126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: ... (b) the contents of a document recording a protected confidence... (2) The court may give such a direction: ... (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences, (j) the public interest in preserving the confidentiality of protected identity information. (5) The court must state its reasons for giving or refusing to give a direction under this section." 11The parties referred to Director General Department of Community Services v D [2006] NSWSC 827, (2006) 66 NSWLR 582, X v Commissioner of Police [2012] NSWSC 930, NRMA v John Fairfax [2002] NSWSC 563 and NRMA v Whitlam [2007] NSWCA 81. All of these cases agree that ss 126A and 126B apply to documents produced on subpoena. 12In Director General v D Brereton J commented upon subpoenas and protected confidences. His Honour stated at [14], [17] and [23]: "[14] As is well established, the court has a discretion as to whether and to what extent access to documents produced on subpoena is to be granted [National Employers Mutual General Insurance Association Limited v Waind and Hill [1978] 1 NSWLR 372], and access will not be granted to documents which are privileged, over the objection of the party whose privilege it is. ... [17] At the outset, it is to be observed that s 126B is concerned with the adducing of evidence in a proceeding, and not with the granting of access to documents produced on subpoena. However, as it would defeat the purpose of s 126B to grant access to documents which record a protected confidence, I accept that the provisions of s 126B are relevant to the exercise of the court's discretion whether or not to grant access to documents produced on subpoena. It would generally be inappropriate to grant access to the documents in question, if the court were likely to make a s 126B direction at the hearing. ... [23] Before s 126B, the confidentiality of a document, in the absence of legal professional privilege, was no objection to its production or admissibility. Section 126B does not create a 'privilege', properly so called, but confers on the court a discretion by which it may direct that evidence of a confidential communication not be adduced, which is to be exercised having regard to the various relevant factors, including those listed in s 126B(4). The mere fact of confidentiality gives rise to the discretion, but it is clear from the factors listed in s 126B that the mere fact of confidentiality does not create an entitlement to a favourable exercise of that discretion." 13And in X v Commissioner of Police at [47] Johnson J stated: "[47] ... The mechanism contained in s 126A-126B requires a court, in the context of a decision as to whether evidence ought be admitted, to undertake a balancing exercise in the context of the hearing then underway. It is true that these provisions of the Evidence Act 1995 are capable of being invoked at other interlocutory stages, such as where application is made for inspection of documents produced on subpoena..." 14In Whitlam, Campbell JA (with whom Beazley JA and Handley AJA agreed) stated at [120] to [123]: "[120] If objection is taken to the documents being inspected, on the ground of confidentiality, and there is a prima facie basis for that objection, it is for the person seeking access to make out a case that access should be granted. In deciding whether to grant access, the Court takes into account both the inherent degree of confidentiality of the documents, and also the importance of the role that they might play in the proceedings. [121] If legitimate objection is taken to inspection of the documents, on the ground that they are confidential, an expedient frequently adopted is to permit inspection by legal advisors on the basis that the contents of the documents are not to be disclosed by them, and are to be used only for the purpose of the proceedings. That permits the hearing to advance, with the confidentiality impinged on only to the minimum extent necessary to enable the hearing to proceed. If in the course of a hearing a question arises of whether such a document that has been permitted to be inspected by legal advisers on confidential terms should be tendered, or should be used in cross-examination of a witness, the court decides at that stage whether any, and if so what, restrictions are imposed on the manner in which the oral evidence is taken, or the access that is granted to the exhibit. [122] In relation to those confidential documents that fit within a recognised category of privilege (other than the special "protected confidential relationships" privilege) the law has already made a judgment that the documents fall within a class whose confidentiality is such that the administration of justice must proceed without them: Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, 133-135; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 at 511 , 563. In relation to the category of protected confidences established by section 126A-126E Evidence Act 1995, the Court is required, by section 126B, to form a view, at the time such a confidence is sought to be adduced in evidence, about whether it is more important that the confidence be protected than that the evidence be available. The need to form that view at the time of tender of the evidence can influence a judge's decision about whether at any earlier stage to permit inspection of such a document, and if so on what terms: Urquhart v Lanham [2003] NSWSC 109. [123] For confidential information that is not privileged, and not within section 126A-126E, the usual approach of the Court is that, to the extent to which the confidential information is relevant to the conduct of the proceeding, it is more important that it be used in the administration of justice than that the confidence be protected. It is, of course, a matter for the discretion of the trial judge whether to follow that usual course in any particular case that is before him or her. Following that usual course, however, involves deciding what is the extent to which it is necessary for the confidence to be overridden to enable justice to be properly administered, and seen to be properly administered. It may be, in the circumstances of a particular case, that that objective is achieved by having those clauses or pages of a document that are relevant to the decision of the case admitted as an open exhibit, and the balance of the document admitted as a confidential exhibit."

Evidence of Dr McCallum and Father Duro 15Both Dr McCallum and Father Duro relied upon their affidavit evidence. Father Duro was briefly cross examined by telephone. Father Knowles, who was represented by counsel at this hearing elected not to put on any affidavit evidence. 16Dr McCallum, a qualified social worker, is currently practising as the principal of Raising Standards. Both she and Father Duro explain how the report came into existence. In early September 2011, a National Committee Meeting was held in Melbourne. Dr McCallum attended in her role as director of the Professional Standards for the Diocese of Darwin. Father Duro, who was a member of the National Committee, was also at the meeting. He approached Dr McCallum and said words to the effect: "There has been a complaint made by a parishioner against a priest in our congregation, Fr Thomas Knowles. I would like you to meet Fr Knowles, assess him and write a report for us." The retainer between Father Duro and Dr McCallum was made by oral conversation (T14.40-50). 17Father Duro who is the current Provincial of the Congregation says that he retained Dr McCallum to prepare the report in his capacity as Provincial Leader of the Congregation and in preparing the report, Dr McCallum was not acting as a consultant to the Professional Standards Office. He had retained Dr McCallum on behalf of the Congregation (Aff [4]). The report was paid for by the Congregation. He denies that the report was prepared for provision to him, in his capacity as a member of the National Committee for Professional Standards. He also denies that Dr McCallum was acting as a consultant to the Professional Standards Office (Aff [2] and [3]). 18Father Duro retained Dr McCallum to provide a risk assessment and management plan in relation to Father Knowles, some years after the alleged sexual assaults took place. The risk that Dr McCallum was asked to assess was whether there was a likelihood of Father Knowles further engaging in behaviour that was in breach of his commitment to a vow of celibacy in the future. Father Duro says that he then asked Father Knowles to undergo the risk assessment and told him the purpose of that assessment (T15.1-10; 20-23). 19After receipt of the report, Father Duro discussed its contents with both Dr McCallum and Father Knowles. He also discussed it with the fourth defendant, the past Provincial of the Congregation. 20So far as he can recall, he did not discuss the report with the director of the Professional Standards Office of the Catholic Church. (T16.11-33). In 2011, Mr Salmon was the director of the Professional Standards for New South Wales. Father Duro's evidence is that he would have informed Mr Salmon that the report was being undertaken but he was not sure whether he discussed the outcome of the report with Mr Salmon (T16.47-50; T17.1-2). Nor was he sure as to whether or not he provided a copy of the report to Mr Salmon (T17.13-17). 21The report itself records that it was commissioned by Father Graeme Duro, Provincial of the Congregation following a complaint by the plaintiff to the New South Wales Professional Standards Office. The report states that it concerns Father Knowles and includes a risk assessment and strategy plan for him based on information gathered from a variety of sources, including face to face interviews, relevant documents, reports and literature. The contents of the report does not canvas the role of, and makes scant reference to the knowledge of, the Provincials of the Church both past and present concerning Father Knowles' conduct. The report is not one of an investigative nature.

Compiling the and views of Dr McCallum on confidentiality 22In late September or early October 2011, Dr McCallum interviewed Father Knowles on two separate occasions over several hours. Father Knowles provided her with certain information from which she based her written report to Father Duro. At the beginning of each interview, Dr McCallum explained to Father Knowles that everything that they discussed would be strictly confidential. She says that he seemed comforted knowing that their interviews were held on a confidential basis. Dr McCallum believed that Father Knowles was completely honest and candid in the information he gave because of her assurance as to the confidential nature of the interviews. 23Dr McCallum explained to Father Knowles that she would write the report based on the information he gave and that she would only send the report to the person who commissioned it, that being Father Duro. She believed that Father Knowles trusted and believed what she had promised. Her view was that Father Knowles seemed comfortable in the knowledge that she would only send the report to Father Duro and no one else. Dr McCallum opined that if Father Knowles did not trust her assurances regarding the confidentiality of their discussions and that she would only send the report to Father Duro, she believes that he would not have communicated with her during the interviews with such candour if he believed otherwise (Aff [6] - [10]).

Is s 126A applicable? 24The main issue to be determined is whether s 126A of the Act is applicable. 25Counsel for the plaintiff submitted that the report was not prepared "in the course of a relationship in which the confidant was acting in a professional capacity". The plaintiff says that, rather, the report was expressly prepared for provision to Father Duro in his capacity as a member of the National Committee for Professional Standards for the Catholic Church and that the report was not provided to Father Knowles. The plaintiff also asserted that Dr McCallum acted as a consultant to the Professional Standards Office and was not a professional confidante of Father Knowles. Further, the plaintiff says that there is no evidence that Father Knowles was Dr McCallum's client or was receiving any treatment from her. 26Dr McCallum opposes the plaintiff being given access to her report because she considers that the subpoena is an unduly harsh demand placed upon her. Counsel for Dr McCallum submitted that the report records a protected confidence because the information that was given by Father Knowles to Dr McCallum, on which the report was based, was given in confidence; secondly, the information was provided in the course of a relationship where Dr McCallum was acting in a professional capacity as social worker with her client [referring to NRMA v John Fairfax [2002] NSWSC 563 at [152]]; and finally, the nature of the social worker/client relationship dictated that the information be kept confidential. Dr McCallum also holds the view that compelling her to reveal what clients tell her in confidence creates an unacceptable conflict with her professional ethics and will have a negative effect on client interaction and make clients less inclined to be open and frank during interviews. She says that this is likely to affect the treatment they receive and the likelihood of recovery (Aff [19]). 27According to Dr McCallum to allow access to the report would have a wider effect in that it would seriously undermine any assurance she may give to her clients about the confidentiality of their information and the use to which any report or client notes would be put. This she says could only serve to make her clients less inclined to be open and frank during interviews and in turn affect the treatment they receive and the likelihood of recovery. (Aff [19]). This evidence is also relevant to the issue of harm, the discretionary considerations set out in s 126B of the Act to which I will refer to shortly. 28The evidence of Father Duro and Dr McCallum establish that the report was commissioned by Father Duro on behalf of the Congregation in response to the plaintiff's complaint concerning Father Knowles. Dr McCallum was retained in her capacity as a social worker and not in her capacity as a consultant to the Professional Standards Office. The report included a risk assessment and strategy plan for Father Knowles in relation to the likelihood of him engaging in behaviour that is in breach of his commitment to a vow of celibacy in the future. The report also incorporates and refers to other sources of information. The third to fifth defendants adopt Dr McCallum's submission. 29Section 126A(2) is not applicable because the communication was not made in the presence of a third party. 30In so far as s 126A is concerned, Dr McCallum falls within the definition of "confidant" and Father Knowles falls within the definition of a "protected confider". That much is clear. Had the communication been made solely between Dr McCallum and Father Knowles, it is also clear that the communication would be a protected confidence. But the report covers other sources of information not just the confidences obtained in the interviews between Dr McCallum and Father Knowles. The protected confidences contained in the report have been disclosed to a third party, the commissioner of the report Father Duro the third defendant. He in turn disclosed its contents to another Provincial, the fourth defendant. 31So far as s 126A(b) is concerned, Dr McCallum says that she was under an express and implied obligation to not disclose the contents of the report to Father Duro. However, it is my view that the report incorporated not only portions of protected confidences, but also other sources, and those protected confidences were disclosed to third parties. Hence, the report does not fall within the definition of a "protected confidence". The provisions of s 126A do not prevent the report being disclosed to the plaintiff.

Section 126B 32I turn now to consider s 126B of the Act. 33Under s 126B the Court may direct that evidence not be adduced in a proceeding if the Court finds that adducing it would disclose the contents of a document recording a protected confidence (s 126B(1)(b)). Dr McCallum is entitled to and has applied for this direction pursuant to s 126B(2)(b). 34The plaintiff submitted that the Court should not exercise its discretion pursuant to s 126B to prohibit access to the report. 35The third to fifth defendants submitted that it would be contrary to the purpose of s 126B of the Evidence Act to grant access to documents, which record a protected confidence and that it would be generally inappropriate to grant access to the document if the Court were likely to make a s 126B direction at the hearing. 36So far as it being inappropriate to grant access to the document if the Court were likely to make a s 126B direction at the hearing, as Brereton J in Director General v D (at [17]) said, "It would generally be inappropriate to grant access to the documents in question, if the court were likely to make a s 126B direction at the hearing." While I do not necessarily agree with this view, it may be that after giving evidence at the hearing that the Court may form a different view in relation to the test in s 126B(3). 37Additionally, the third to fifth defendants submitted first, that there is no suggestion that other evidence sought to be relied upon in the proceedings refers to or relies upon the contents of the report; secondly, that there is no suggestion that the substance of the protected confidence has already been disclosed; and finally, that the interview and report occurred many years after the alleged conduct and addresses issues that are different to those the subject of these proceedings. 38Having read the report, it does traverse the relationship between the plaintiff and Father Knowles but he has in his defence admitted the long standing sexual relationship ("the relationship") between them. The issue of consent remains strongly in dispute. As noted earlier in my judgment, there is scant reference to the issues of knowledge and no reference to the supervision or roles played by the Provincials in relation to Father Knowles.

Harm 39Section 126B(3) provides that this Court must give a direction that the evidence not be adduced if it is satisfied that it is likely that harm would or might be caused (whether directly or indirectly) if the evidence is adduced, and the nature and extent of the harm outweighs the desirability of the evidence being given. As set out earlier in this judgment, harm is defined in s 126A and includes actual physical harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). [Emphasis added]. 40The plaintiff submitted that there is no evidence that "it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider" under s 126B(3)(a) or "the likely effect of adducing evidence of the protected confidence ... including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider" under s 126B(4)(e). 41Dr McCallum submitted that the Court is required to take into account the harm that "might" be caused "whether directly or indirectly". She submitted that Father Knowles would suffer "harm" by way of stress, damage to reputation as a priest in the Catholic Church and shame and humiliation if the report was admitted into evidence. Dr McCallum further submitted that Father Knowles relied on the promise of confidentiality when he gave the information to her. She says that Father Knowles would be caused harm if the promise were not fulfilled. 42As previously noted, Father Knowles has not provided any evidence to this Court. Hence, there is no direct evidence from him as to harm that may be done to him if the report is disclosed. It is also not known whether he would suffer actual physical harm or financial loss emotional or psychological harm. Nevertheless, given the allegations made against him, I accept that Father Knowles may suffer some harm, either director or indirect, by way of stress, shame and humiliation and damage to his reputation as a priest of the Catholic Church if the report is disclosed. After this motion was heard in this court, these proceedings attracted some publicity. The newspaper articles set out the allegations made by the plaintiff against Father Knowles and the Provincials. To some extent, some of the content of the report regarding the relationship between the plaintiff and Father Knowles has been disclosed. 43I take Dr McCallum's evidence into account that Father Knowles relied upon the promise of confidentiality that she gave. I also take into account that Father Knowles may suffer some direct harm by way of stress, shame and humiliation and damage to his reputation as a priest of the Catholic Church. I also take into account that the most relevant parts of the report covering the existence of a relationship between the plaintiff and Father Knowles are admitted but there is a dispute as to whether or not it was consensual. Overall, I am satisfied that the harm that would or might be caused to Father Knowles does outweigh the desirability of evidence being given. 44That being so, this Court must give a direction that the report not be adduced on the basis that the harm would be caused either directly or indirectly to Father Knowles and the nature and extent of the harm outweighs the desirability of the report being given to the plaintiff. 45Hence, the plaintiff's application for access to the report is refused. 46If I am wrong, I turn to consider the discretionary matters referred to in s 126B(4).

(a) & (b) The probative value of evidence and its importance 47The third to fifth defendants and Dr McCallum contended that the probative value of the report is doubtful. The plaintiff however, submitted that the report may be highly probative towards a number of issues relevant to the proceedings, including whether the harm to the plaintiff was reasonably foreseeable by the past and present Provincials and whether there were reasonable preventative steps available to them. The plaintiff submitted that the report might traverse the extent and nature of the first defendant's sexual misconduct over the period in question, and whether or when Father Knowles made the Order aware, directly or indirectly, of his conduct. 48Father Knowles has admitted that he had a sexual relationship with the plaintiff that is no longer an issue in dispute. The focus of the report is whether or not Father Knowles will, in the future, engage in behaviour that is in breach of his vow of celibacy. It is not an investigative report. As previously mentioned, there is scant reference to the issues of knowledge and no reference to the supervision or roles played by the Provincials in relation to Father Knowles. It is my view is that the report has little probative value.

(c) The nature and gravity of the relevant offences, cause of action or defence 49On the plaintiff's case, the offences are serious. She alleges that the relationship started when she was 19 years of age and that the acts were intentional acts of misconduct and were without her consent. She alleges that Father Knowles and his conduct resulted in her suffering psychological harm. On Father Knowles' case, he admits that he had a relationship with the plaintiff from the age 20 spanning a number of years but says that their relationship was a consensual one.

(d) Availability of any other evidence concerning the matter which the protected confidence relates 50There is no evidence as to the availability or non availability of other evidence.

(e) Likely effect of adducing evidence of the protected confidence to the protected confider including likelihood of harm 51I have addressed this issue earlier in this judgment.

(f) The means available to the Court to limit the extent of harm to be caused if the evidence of the protected confidence is disclosed 52Of concern is that the report mentions third parties who are not involved nor identified in this litigation and whose attitude to the release of evidence relating to them and their identity has not been ascertained. In these circumstances their identity should to be protected. 53One likely effect that has not been addressed in this judgment so far is that without undertakings of confidentiality, the identities of those third parties may be disclosed. They may then be the subject of unwarranted publicity. This problem can be largely overcome by giving access to the report to the plaintiff's legal advisors only and by restricting the identities of the third parties from publication.

(g) If the proceedings is a criminal one 54The proceedings are civil but involving allegations of a criminal nature.

(h) Whether the substance of the protected confidence has already been disclosed 55The report that includes the protected confidences have been disclosed to Father Duro and the fourth defendant.

(i) Public interest - protected confidences 56The third to fifth defendants and Dr McCallum submitted that it is in the public interest to preserve the confidentiality of communications between client and social worker. 57On this topic counsel for Dr McCallum drew this Court's attention to the Australian Law Reform Commission Report 26 'Evidence (Interim)' Report 30 June 1984 where it stated at [936] and [940]: "Inherent in the relationship between social worker and client is the concept of trust. ... In many situations, however, a social worker cannot continue his or her assistance unless the client can rely implicitly upon the social worker preserving confidences and the disclosure of confidential communications may also discourage persons from seeking help in the future. ... the relationship between social worker and client is one that demands, in the public interest, that every possible protection be given to the privacy of communications between them." 58Earlier in this judgment, I referred to Dr McCallum's view that to permit disclosure of the report would have a wider effect because it would seriously undermine any confidentiality assurance she may give to her clients in the future. She says that this could only serve to make her clients less inclined to be open and frank during interviews and in turn affect the treatment they receive and the likelihood of recovery. Further, she says that compelling her to reveal what clients tell her in confidence creates an unacceptable conflict with her professional ethics and will have a negative effect on client interaction. The result is that if this report was released is likely to negatively affect the treatment Dr McCallum can provide in the future. I accept that there is a public interest in protecting these confidences.

(j) Public interest in preserving the confidentiality of the protected identity information 59As previously stated, Father Knowles has already been identified and the allegations made in these proceedings have already been the subject of publicity. I have already discussed the need for protection of the identities of those third parties mentioned in the report who are not involved in these proceedings. 60The discretionary factors that mitigate against granting access to the report are that Father Knowles may suffer some harm, either director or indirect, by way of stress, shame and humiliation and damage to his reputation. Furthermore, the report has little probative value, and finally, there is a public interest in preserving the confidentiality of protected confidences between a social worker and client. 61The factors that are in favour of granting access to the report are that the protected confidences have already been disclosed to Father Duro and the fourth defendant. 62A neutral factor is that the report mentions third parties who are not involved nor identified in this litigation and who may become the subject of unwarranted publicity. This problem can be largely overcome by protecting their identities from publication or restricting access. 63Taking these matters into account, in the exercise of my discretion, the factors against granting the plaintiff access to the report outweigh the factors supporting the grant of access to the report under s 126B of the Act. I refuse to grant the plaintiff access to the report. 64The result is that the notice of motion filed 13 March 2014 is dismissed. The plaintiff is to pay the defendants' costs on an ordinary basis as agreed or assessed.

The court orders that: (1) The plaintiff is refused access to the report of Dr McCallum dated 9 November 2011. (2) The notice of motion filed 13 March 2014 is dismissed. (3) The plaintiff is to pay the defendants' costs on an ordinary basis as agreed or assessed. (4) The report is to be returned to the solicitor for Dr McCallum.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2014