Plaintiff v Defendants

1 This ruling concerns an application by the plaintiffs in two proceedings for leave to access, inspect and copy County Court of Victoria files. The four files relate to criminal proceedings against Father Julian Benedict Fox ('Fox') and Father Frank Gerard Klep ('Klep'). The proceedings here are civil proceedings. They relate to allegations that Fox and Klep sexually abused students at the Salesian College in Sunbury. The plaintiffs in these proceedings, namely Mr Easton and Mr Stephensen, allege they were sexually abused when they were students at Salesian College. Mr Easton alleges sexual abuse by Fox and Klep. Mr Stephensen alleges sexual abuse by Fox.

2 There have been a number of criminal proceedings in the County Court of Victoria where Fox and Klep have been prosecuted. Klep has pleaded guilty and been convicted in respect of a criminal charge in respect of Mr Easton. There were criminal proceedings against Fox with Mr Stephensen (and others) as complainants. As discussed below, there is no finding of guilt in respect of the charges concerning Mr Stephensen, although there are findings of guilt with respect of charges by other complainants.

(a) What are the applicable principles for determining access to files held by another court (in Victoria) for the purpose of a proceeding in this Court?

(b) Should access be given to the County Court of Victoria files?

(c) If so, should a confidentiality regime be imposed?

4 The defendants neither consent nor object to the application. At the Court's request, subsequent to the hearing, they provided written submissions to assist the Court. [1]

5 The plaintiffs provided written submissions subsequent to the hearing.[2] The plaintiffs relied upon the affidavits of their solicitor, Thomas Wallace-Pannell, affirmed in each proceeding on 10 September 2018 ('the Wallace-Pannell affidavit').

6 For the reasons below, I will allow limited access to particular documents on some files with the names of complainants in those files (other than the plaintiffs' names) and their identity information redacted, prior to access being granted.

7 I gratefully adopt the background to the proceedings set out in the ruling of Clayton JR:[3]

The two proceedings - Stephensen v The Salesian Society Incorporated & Ors ('Stephensen matter'); and Easton v The Salesian Society Incorporated & Ors ('Easton matter') - involve allegations by the plaintiffs that they were sexually assaulted in 1979 and 1980 whilst they were students at Salesian College, Sunbury ('the School'). Mr Easton alleges sexual assault by Fathers Klep and Fox. Mr Stephenen alleges sexual assault by Father Fox.

In the Stephensen matter, Mr Stephensen alleges that he attended the School which was operated, managed and controlled by the defendants, who had responsibility for supervising staff. The defendants say that the School was under the care, management and control of the School Principal, Jennings, and the Provincial, Cornell, and otherwise do not admit any of the allegations about the care, management, and control of the School. The defendants say that Principal Jennings was responsible for the supervision of Fox between 31 January 1976 and 31 December 1981, but do not admit that any other defendant was responsible for supervision of Fox.

The defendants deny that they placed Fox in a high position of authority, power, care, intimacy and supervision over Mr Stephensen, and deny that the relationship between Fox and Mr Stephensen, who was 12 at the time of the alleged sexual assault, was one of 'high power, intimacy, trust and responsibility'. The defendants deny that they instructed, authorised or otherwise allowed Fox to administer punishment, including corporal punishment, to Mr Stephensen.

The defendants do not admit that Fox sexually assaulted Mr Stephensen by placing his erect penis into the plaintiff's anus on multiple occasions whilst ostensibly administering punishment.

The defendants deny that they are vicariously liable for the sexual assaults alleged and deny that they were committed in the course of Fox's employment, service or agency with the defendants. The defendants deny that at the time of the assaults, Fox was acting as an agent of the defendants for the purposes of the pursuit and furtherance of their undertaking, namely, the education of children at the School and the provision of pastoral and religious instruction and care.

The defendants admit that they owed Mr Stephensen a non-delegable duty of care to exercise reasonable care for his safety. They do not admit that the duty extended to a duty not to assault him or place him in circumstances where he would fear that he would be assaulted, or a duty to protect him from sexual assault by those who taught at the School. They deny that the alleged assaults, injury, and harm to Mr Stephensen were caused by breaches of duty of care owed by the defendants. They deny that they departed from the standard of care owed to such a degree that it constituted gross negligence.

In the Easton matter, Mr Easton alleges that the Salesian Society operated, and had the care, management and control of the School and was responsible for appointed and supervising staff. The defendants admit that the Salesian Society owned and operated the School and say that Principal Jennings, under the direction of the Provincial, had care, management and control of the School. The defendants do not admit that any of them were responsible for appointing fathers and staff to the School, or supervising staff.

The defendants admit that Klep was a teacher at the School from 31 January 1973 to 31 January 1980 and admit that Mr Easton was a boarding pupil at the School in 1979. They deny that they placed Klep in a position of authority, power, care, intimacy and supervision over Mr Easton.

The defendants do not admit that Klep sexually abused Mr Easton by masturbating his penis on three occasions.

The defendants admit that Fox was a teacher whilst Mr Easton was a pupil at the School, but do not admit that Fox abused him by anal penetration. They do not admit that Mr Easton told Principal Jennings that Fox had given Mr Easton a drink which caused Mr Easton to pass out and, when he awoke, he had a sore anus. They do not admit that Principal Jennings knew about abuse committed by Fox on another pupil at the School, or that another pupil was told by Jennings to stay silent about abuse by Fox.

The defendants deny that they failed to take all or any reasonable action in response to knowledge of sexual abuse at the School, and deny that they knowingly or recklessly allowed paedophiles to operate within the School with impunity.

The defendants deny that they are vicariously liable for the acts of Klep or Fox. The defendants deny that they intended to cause, or were recklessly indifferent to causing, injury and harm to Mr Easton. They deny that Principal Jennings engaged in a conspiracy with the defendants to conceal sexual abuse by Klep and Fox.

They deny that they were negligent or that their breach of duty amounted to gross negligence.

They admit that they owed Mr Easton a duty to exercise reasonable care for his safety but deny that this amounted to a requirement to:

remove Klep from the School before 1979; or

remove Fox from the School prior to 1980; or

protect Mr Easton from sexual abuse by those who taught at the School; or

not place Mr Easton in circumstances where he would fear that he would be sexually abused; or

act on knowledge that Fox had abused pupils at the School.

I have detailed the allegations and defences made in detail because the issues in these cases are relevant to the objection taken by CCI and the defendants to the subpoenas issued by each of the plaintiffs.

What are the applicable principles for determining access to files held by another court (in Victoria) for the purpose of a proceeding in this Court?

8 Rule 42.13 of the Supreme Court (General Civil Procedure) Rules 2015 is applicable. It is the mechanism by which the County Court of Victoria files have been delivered to this Court. It provides:

42.13 Documents and things in the custody of a court

(1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Prothonotary in writing accordingly, identifying the document or thing.

(2) If the document or thing is in the custody of the Court, the Prothonotary shall produce the document or thing -

(a) in Court or to any person authorised to take evidence in the proceeding, as required by the party; or

(b) as the Court directs.

(3) If the document or thing is in the custody of another court, the Prothonotary shall, unless the Court has otherwise ordered -

(a) request the other court to send the document or thing to the Prothonotary; and (b) after receiving it, produce the document or thing -

(i) in Court or to any person authorised to take evidence in the proceeding as required by the party; or

(ii) as the Court directs.

9 The parties refer to the principles concerning subpoenas and say they are relevant. The defendants point to r 42.13 being contained in Order 42 which relates to subpoenas.

10 The defendants say that access should be limited to the documents that would otherwise be produced under subpoena. They say the documents provided should be limited to those directly relevant to the issues in the cases now before the Court and those that may have potentially some use in the proceedings.

11 Whilst it is relevant that r 42.13 is contained within the order relating to subpoenas, as discussed below, the authorities indicate the applicable principles are not the same as for subpoenas.

12 No Victorian authorities on the application of r 42.13 of the Rules was identified. However, the equivalent rule in NSW, being r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW), has been considered by the Supreme Court of New South Wales and the Court of Appeal of New South Wales. Further, a similar rule in the Federal Court, being r 24.24 of the Federal Court Rules 2011 (Cth) has also been considered. I will set out these rules as they inform the discussion below.

13 Rule 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) ('the NSW Rules') provides:

(1) A party who seeks production of a document or thing in the custody of the court or of another court may inform the registrar in writing accordingly, identifying the document or thing.

(2) If the document or thing is in the custody of the court, the registrar must produce the document or thing:

(a) in court or to any person authorised to take evidence in the proceeding, as required by the party, or

(b) as the court directs.

(3) If the document or thing is in the custody of another court, the registrar must, unless the court has otherwise ordered:

(a) request the other court to send the document or thing to the registrar, and

(b) after receiving it, produce the document or thing:

(i) in court or to any person authorised to take evidence in the proceeding as required by the party, or

(ii) as the court directs.

14 Rule 24.24 of the Federal Court Rules 2011 ('the Federal Court Rules') provides:

Documents and things in custody of Court

(1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing, identifying the document or thing.

(2) If the document or thing is in the custody of the Court, the Registrar must produce the document or thing:

(a) in Court or to any person authorised to take evidence in the proceeding, as required by the party; or

(b) as the Court directs.

(3) If the document or thing is in the custody of another court, the Registrar must:

(a) ask the other court to send the document or thing to the Registrar; and

(b) after receiving it, produce the document or thing:

(i) in Court or to any person authorised to take evidence in the proceeding as required by the party; or

(ii) as the Court directs.

15 Rule 42.13 requires the Court itself to determine access. It differs from a subpoena application in that respect. The mechanism itself is different. Parties cause subpoenas to be issued and courts generally only consider whether they are allowed when an objection is made. Rule 42.13 requires the Court itself make an initial assessment. As Barret J stated in respect of r 33.13 of the NSW Rules:

The procedure here is one under which the court itself decides whether access may be had in a particular case and for a particular purpose to a document or thing already in the court's custody... [4]

16 An example of the Court exercising its discretion as to whether to provide access to a file is Graham v Colonial Mutual Life Assurance Society Ltd ('Graham').[5] In that case, McKerracher J considered whether a file held by the Family Court of Western Australia could be forwarded to the Federal Court pursuant to r 24.24. His Honour held that in order for a party to be successful in obtaining access under r 24.24, it must be proven that some specific utility would be produced by the inspection:

there do not appear to be published authorities dealing directly with a direction of the kind sought under the FCR. However, there are cases from other jurisdictions which I will examine and which provide some guidance to factors relevant to the exercise of discretion to make such a direction. Key considerations in my view are that:

(a) contrary to what I take to be the submission for CML, I do consider that Family Court WA proceedings stand in a special category. So much appears to be accepted in relation to child-related documents but, in my view, unlike a commercial dispute, for example, there are clear indications that the legislature contemplated that Family Court WA proceedings should remain private and that the exchanges arising in those proceedings should not in the ordinary course of events enter the public domain.

(b) further, in my view, access to the Family Court WA file should not be permitted until the views of the former wife are sought, obtained and considered by the Registrar in relation to access.

(c) again, contrary to the submissions for CML, the implied obligation of confidentiality is a factor to take into account. Parties engaging in dispute resolution being required to observe obligations of confidentiality would not in the ordinary course of events expect third parties to obtain access to those confidential materials.

(d) contrary to the submissions for M/s Graham, however, I am unable to discern any client legal privilege or other privilege which would be relevant to matters currently under my consideration.

(e) also contrary to the submissions for M/s Graham, all other matters being equal, particularly, public interest factors, the fact that inspection may constitute "fishing" would not be sufficient to preclude it. However and importantly, it must be clear that some specific utility would be produced by the inspection.

(f) It is accepted that the request of the Registrar of the Family Court WA that there be no copying of child-related documents should be complied with, although this presents a difficulty in this application in that the entire file which has been produced is essentially comprised of child-related documents as the dispute between the parents pertained to access, custody, and maintenance of children of the former marriage. This must, as the Registrar's request implies, be a particular consideration because the children were neither capable of instituting the proceedings themselves and/or placing evidence on record."[6]

17 In International Litigation Partners Pty Ltd v Commissioner of Taxation[7], Jagot J rejected an application to obtain documents in a Family Court case made pursuant to r 24.24 of the Federal Court Rules because the documents related to children. Jagot J stated:

While I accept, in accordance with Graham and the authorities referred to therein, that the test is not one of relevance, the exercise of discretion must still involve weighing the likelihood of the Family Law file disclosing to the commissioner anything of any real utility against the interest in preserving the confidential and personal nature of the documents contained in the file. In this respect, particular regard must be had to the fact that Mr Lindholm is not a party to this proceeding. While he is referred to in and relevant to the proceeding, he is not a party. This is a relevant distinguishing factor from the circumstances in Darling [Cmr of Taxation v Darling [2014] FamCAFC 59; 285 FLR 428]...[8]

19 The decision as to whether to provide access to another court's files pursuant to r 42.13 of the Rules is a discretionary one. It involves weighing the likelihood of the file disclosing anything of real utility against the interest in preserving the confidential and personal nature of documents contained in the file. Particular regard must be had to that fact where the parties to each proceeding differ. Other factors relevant to the discretion include the nature of the proceedings, including whether they are criminal or civil, whether there have been any suppression or confidentiality orders in place, whether there is statutory protection for the disclosure of information such as the identity of persons, the purpose for which the documents are sought and whether there is a confidentiality regime that will appropriately protect personal and confidential information. There is another factor which may also be relevant in some circumstances, and that is whether or not the information sought in the files can be accessed by other means. I refer, for instance, to sections 167 and 178 of the Evidence Act 2008, which are discussed further below.

20 I add the following for completeness. The question of whether particular documents are admissible is one for the trial judge.[9] Admissibility is not the test of whether the files of another Court may be inspected. It may however be a factor to consider in determining whether there is any real utility to inspecting the documents. In that context, it is useful to consider the framework for the admission of evidence regarding criminal proceedings.

21 In short, evidence of the conviction itself is admissible, but otherwise evidence is generally not admissible to prove the existence of fact that was in issue in that proceeding.

22 The Evidence Act 2008 provides:

91 Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

92 Exceptions

...

(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction -

(a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or

(b) that has been quashed or set aside; or

(c) in respect of which a pardon has been given.

(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

23 Further I adopt the reasoning of McDonald J who stated that:

Section 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. Rather, it prevents the judgments being tendered for the purpose of proving the existence of those facts.[10]

24 The Evidence Act 2008 (Vic) provides a mechanism for obtaining further information concerning evidence of convictions. Although the plaintiffs says that notices to admit have been served in this proceeding, there was no evidence before me of ss 167 and 178 of the Evidence Act 2008 being utilised.

167 Requests may be made about certain matters

A party may make a reasonable request to another party for the purpose of determining a question that relates to -

(a) a previous representation; or

(b) evidence of a conviction of a person for an offence; or

(c) the authenticity, identity or admissibility of a document or thing.

178 Convictions, acquittals and other judicial proceedings

(1) This section applies to the following facts -

(a) the conviction or acquittal before or by an applicable court of a person charged with an offence;

(b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court;

(c) an order by an applicable court;

(d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding.

(2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court -

(a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question; and

(b) stating the time and place of the conviction, acquittal, sentence, order or proceeding; and

(c) stating the title of the applicable court.

(3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.

(4) A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate.

(5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate.

(6) In this section -

'acquittal' includes the dismissal of the charge in question by an applicable court;

'applicable court' means an Australian court or a foreign court.

25 I will briefly address the plaintiffs' submissions about the applicable test. They submit that the applicable test for access pursuant to r 42.13 is whether or not there is an appropriate nexus between the documents sought and those in the current proceeding. I reject that submission. The plaintiffs rely upon Al-Shennag v Statewide Roads Pty Ltd[11] ('Al-Shennag'), applied in Morony v Reschke ('Morony')[12] in support of this proposition. Those cases, which considered the equivalent NSW rule, are both distinguishable. In Al-Shennag, a defamation proceeding, there was a plaintiff and defendant common to both proceedings. The defendants sought to access a file in an unfair dismissal proceeding. The plaintiff was granted a first right of access to inspect the file and identify whether or not he wished to raise any confidentiality concerns. Unsurprisingly in that proceeding, it was stated that the findings about access were limited to that particular proceeding.[13] In Morony, a commercial dispute, access was sought to files in other proceedings. Evidently at least some of these files had some of the same parties. A similar 'first right of access' regime was put in place in respect of the files. This type of regime is not possible in relation to the files here. Firstly, the parties are not the same. They are criminal files. Secondly, the complainants in the files are not the same as the parties here. Thirdly, there are statutory protections protecting the identity of the complainants.

26 The plaintiffs contend that it is unnecessary for them to narrowly identify the documents sought on the other file. In Morony, reference was made to this issue, referring to Al-Shennag:

His Honour also held that access to a file produced in that manner could be granted without a party specifying the particular documents or classes of documents that were said to relate to the facts in issue in the relevant proceedings, at least in circumstances where a right of first access to the other party had been given to allow the opportunity for any claim for confidentiality or privilege to be made.[14]

27 This is not applicable here, in circumstances where there is no 'right of first access' which can be granted to the complainants referred to in the files sought (save for the plaintiffs).

28 Here, the plaintiffs are seeking access to the whole file and declined to specify what types of documents they sought to access. The documents are sought for the purpose of identifying the conduct of Fox and Klep at a particular time. They wish to use it for tendency issues. They do not intend to rely on the documents as evidence. They seek the information to use as a 'baseline for certain issues' or to found a notice to admit (although they say notices to admit have already been served).[15] The plaintiffs say the information could lead them to evidence that could be used in the trial. They cannot say whether some of the information in the file is tangential or not. Further, the plaintiffs say they may use the information to identify witnesses to subpoena.

29 The defendants say the plaintiffs are fishing and that they should identify the documents sought with precision.

30 I accept that the plaintiffs cannot precisely identify the documents sought because they do not know what is on the files. However, they should identify at least the types of documents sought, and the purpose for seeking those documents, so that the Court can properly consider their request for access.

Should access be given to the County Court of Victoria files?

31 Turning now to whether any access should be given to the four County Court of Victoria files. I have inspected them. Given the application concerns access to the entire files, it is necessary to briefly describe the files and some of the substantive documents in them.

33 This file concerns 15 charges against Klep concerning allegations of rape, indecent assault and attempted buggery. Mr Easton was a complainant in these proceedings and Klep pleaded guilty in respect of the charge concerning Mr Easton.

35 indictment including particulars and statement of offence that lists 15 charges concerning 15 different men. Charge 12 relates to Mr Easton and is an allegation of indecent assault of him in 1979;

36 agreed summary of facts for plea dated 25 March 2014 - as discussed below, this has already been provided to Mr Easton's solicitors; they also made reference in submissions to a Court of Appeal statement of agreed facts regarding Klep;

37 psychological assessment of Klep dated 26 March 2014 prepared for sentencing purposes;[16]

38 transcript with handwritten notes of hearings before Gucciardo J on 3 and 8 April 2014 (both with handwritten notes);

39 record of orders dated 3 April 2014 indicating Klep's plea of guilty to all charges;

40 record of orders dated 26 May 2014 indicating Klep's conviction and sentence in respect of each charge;

41 correspondence with the solicitors acting for various complainants; and

42 victim impact statements and related correspondence with the complainant's solicitors. There is no victim impact statement on file in respect of Mr Easton.

43 There is another matter relevant to this file. It is very disappointing that Mr Easton's legal representatives did not refer to it in submissions or in the Wallace-Pannell affidavit. It concerns a previous request to the County Court of Victoria to access this file.

44 The file indicates that the plaintiffs' current solicitors, Porter Lawyers, requested access to parts of this file on behalf of Mr Easton and another client who was a complainant in the proceedings. The documents were sought because they were acting 'in relation to civil claims for damages arising out of their being sexually abused by Father Klep whilst they were students at Salesian College Rupertswood in 1979 and 1980'. The victim impact statements were sought because Mr Easton no longer had a copy of his statement and his solicitors were intending to engage in alternative dispute resolution processes.[17] They sought Gucciardo J's sentencing remarks, any victim impact statements taken into account in sentencing and any agreed statement of facts submitted.

45 On 12 May 2016, the associate to Gucciardo J responded to Porter Lawyers. In relation to the request for sentencing transcript, reference was made to Gucciardo J's reasons for sentence being on the AustLII website with the names of complainants anonymised.[18] A copy of the agreed summary of facts for plea (referred to above) was provided. A copy of Mr Easton's victim impact statement was not provided as it was not tendered and therefore not on the file. The associate indicated that access to the victim impact statements of other persons for whom the solicitors were not acting would be refused because they were not acting for them and therefore would not be assisted by them. It was stated that this could be revisited if a persuasive reason was required to access them. As Mr Easton's victim impact statement was not tendered, it could not be provided.

46 It is inappropriate to revisit Gucciardo J's directions concerning Mr Easton's request for particular documents on the file, particularly in circumstances where there has been no explanation from his legal practitioners as to why I should.

47 Turning now to other documents which were not previously the subject of request by Mr Easton's lawyers. The documents of real utility may be the indictment and orders referred to above. I accept the documents may be used to cross-examine witnesses in relation to the allegations of vicarious liability. I refer and adopt the analysis by Clayton JR:

The existence of any documents which might provide evidence of allegations of sexual abuse by Klep and Fox made by other pupils, or might provide evidence of the knowledge of the defendants of such allegations, will be of particular importance. It will assist the Court in assessing both the claims of the plaintiffs and the defences pleaded.

... I am satisfied that the plaintiffs have identified precisely the legitimate forensic purpose for which those documents are sought - to establish a tendency on the part of Fox and Klep to commit the abuse alleged, and to establish that the defendants either knew or ought to have known of such abuse because of the fact that it occurred to multiple pupils. These are matters clearly in issue in the proceeding. ...[19]

48 I do not consider it appropriate to provide the psychological assessment concerning Klep on the Court file. Reference has been made to it in the sentencing remarks, as discussed above.

49 The next three files concern Fox. They were all subject to suppression orders which were revoked on 28 August 2015.

50 This file concerns 16 charges against Fox concerning allegations of assault, indecent assault and buggery. Mr Stephensen was a complainant in these proceedings. There were no findings in respect of the allegations concerning him.

(a) indictment including particulars and statement of offence that lists 9 charges concerning 4 different men. Charges 10 and 11 relate to Mr Stephensen and concern allegations of buggery in 1980;

(b) Victoria Police summary statement of the material facts relevant to the charges;

(c) Defence response to prosecution opening dated 19 March 2014;

(d) Prosecution notice of coincidence evidence dated 15 May 2014;

(e) Prosecution notice of tendency evidence dated 15 May 2014;

(f) record of orders dated 28 August 2015 indicating Fox's plea of guilty to charges 1, 2 and 3 and recording his conviction and sentencing;

(g) correspondence with the solicitors acting for various complainants and the solicitor acting for the accused;

(h) subpoenas and applications for subpoenas concerning the medical records of complainants including Mr Stephensen, and transcript of subpoena hearings on 16 April 2014 and 1 May 2014, and orders concerning subpoenas (not relating to Mr Stephensen) made those days; and

(i) various timetabling and other orders.

52 The same analysis applies as to the file above. The documents of real utility may be: the indictment, Victoria Police summary of material facts, defence response to prosecution opening and the two prosecution notices and orders, all referred to above.

53 This file concerns 9 charges against Fox concerning allegations of indecent assault and buggery. Mr Stephensen was a complainant in these proceedings. There were no findings in respect of the allegations concerning him.

(a) indictment including particulars and statement of offence that lists 9 charges concerning 4 different men. Charges 4, 5 and 6 relate to Mr Stephensen and concern allegations of buggery in 1980;

(b) two page statement dated 8 August 2014 signed by Mr Stephensen which appears to have been given to the police;

(c) prosecution's amended notice of coincidence evidence dated 8 August 2014;

(d) outline of prosecution submissions on coincidence evidence dated 13 August 2014;

(e) submissions on behalf of the accused dated 13 August 2014;

(f) record of orders dated 18 August 2015 indicating Fox's plea of not guilty to all charges;

(g) summary of prosecution opening dated 2 September 2014;

(h) record of orders dated 1 December 2014 indicating jury findings on 11 September 2014 that Fox is guilty in respect of charges 1 and 2;

(i) sentencing orders made by Judge Hicks on 28 August 2015;

(j) correspondence with the solicitors acting for various complainants; and

(k) subpoenas concerning the medical records of a complainant (not Mr Stephensen); and

(l) various timetabling and other orders.

55 The same analysis applies as to the file above. The documents of real utility may be: the indictment, Mr Stephensen's signed statement, prosecution notice dated 8 August 2014, prosecution outline of submissions dated 13 August 2014, accused's submissions dated 13 August 2014, and orders, all referred to above.

56 This file concerns one indecent assault charge concerning a complainant that is not Mr Easton or Mr Stephensen. It indicates that the prosecution was discontinued on 2 July 2015.

57 I do not consider there is any real utility in providing access to the file.

What confidentiality regime should be imposed, if any?

58 The defendants say that if access is provided, the names of any non-party victims or alleged victims of Fox and Klep should be redacted to protect their identity. This is particularly the case if orders were made by the County Court of Victoria to protect their identity. Alternatively, their names should be subject to pseudonyms.

59 The plaintiffs say it is for the Court to determine confidentiality. They say that they could deal with confidentiality and will respect any confidentiality condition imposed - so long as the plaintiffs and their legal practitioners may access the information and use it in the proceeding. I do not consider that would be a confidentiality regime.

60 The importance of protecting the identity of sexual assault complainants is evident in various legislation. Section 277 of the Serious Offenders Act 2018 (Vic) states:

277 Offence to publish certain information

(1) Unless authorised to do so by the court under section 278, a person must not publish or cause to be published -

(a) any evidence given in a proceeding before a court under this Act; or

(b) the content of any report or other document put before a court in a proceeding under this Act; or

(c) any information that is submitted under this Act to a court that might enable a person (other than the offender) who has attended or given evidence in a proceeding to be identified; or

(d) any information submitted under this Act to a court that might enable a victim of a serious sex offence or a serious violence offence committed by the offender to be identified.

Penalty: 600 penalty units in the case of a body corporate;

120 penalty units or imprisonment for 1 year or both in any other case.

(2) Despite subsection (1), a police officer may publish the identity and location of an offender -

(a) to the Australian Crime Commission (by whatever name described) established by the Australian Crime Commission Act 2002 of the Commonwealth, for entry on the Australian National Child Offender Register; or

(b) in the course of law enforcement functions; or

(c) in the execution of a warrant referred to in section 173 or the arrest or apprehension of an offender under section 155 or 173.

(3) Despite subsection (1), a person or body that engages in journalism may publish the identity and location of an offender if the information is published -

(a) at the request of a police officer who disclosed that information; and

(b) for the purposes of subsection (2)(b) or (2)(c).

61 Further, s 4 of the Judicial Proceedings Reports Act 1958 restricts publication of particulars likely to lead to the identification of sexual offence complainants and s 166 of the Family Violence Protection Act 2008 prohibits identification of persons involved in family violence proceedings.

62 This policy is also evident in the protection of disclosures for physicians and surgeons in s 32C of the Evidence Miscellaneous Provisions Act 1958. The public policy reasons for this are referred to in the 'guiding principles' in s 32AB:

32AB Guiding principles

It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that -

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under-reported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.

63 The same guiding principles apply to procedures relating to witnesses under part 8.2 of the Criminal Procedure Act 2009.

64 Usefully, the Evidence Miscellaneous Provisions Act 1958 identifies 'protected identity information'. It means 'in relation to a person, is information about, or enabling a person to ascertain, the address (including a private, business or official address) or telephone number (including a private, business or official telephone number) of the person'.[20]

65 Turning now to the application of these principles. The identity of the complainants who are not parties to this proceeding should not be disclosed by providing access pursuant to r 42.13. To do so, would be contrary to the public policy described above.

66 I add for completeness, this ruling relates to r 42.13 documents. Whether or not the identities of other complainants are disclosed is a matter for the trial judge. There will be other relevant factors, such as consent. I note the plaintiffs submit they are already aware and in contact with some of these other complainants. There is no evidence before me of any consent in respect of access to these files by other complainants.

67 Where access to documents has been provided, copies may be provided with the names and 'protected identity information' (as defined above) of any complainants other than Mr Easton and Mr Stephensen redacted.

68 To summarise, access to the following will be provided with the names and 'protected identity information' of any complainants other than Mr Easton and Mr Stephensen redacted.

(a) County Court file CR - 13-02307 - DPP v Klep - Copies of indictment and orders referred to above;

(b) County Court file CR- 13-02037 - DPP v Fox - Victoria Police summary of material facts, defence response to prosecution opening dated 19 March 2014, and the two prosecution notices dated 15 May 2014 and orders referred to above; and

(c) County Court file CR- 14-01391 - DPP v Fox - Mr Stephensen's signed statement, prosecution notice dated 8 August 2014, prosecution outline of submissions dated 13 August 2014, accused's submissions dated 13 August 2014, and orders referred to above.

69 No access will be provided to County Court file 14-01427 - DPP v Fox.

GREGORY CHAMBERS (as executor of the estate of the late Terrence Jennings)

GREGORY CHAMBERS (as executor of the estate of the late Wallace Cornell)

GREGORY CHAMBERS (as executor of the estate of the late William Edwards)

GREGORY CHAMBERS (as executor of the estate of the late James Carroll)

GREGORY CHAMBERS (as executor of the estate of the late Peter Swain)

[1] 'Submissions of the Defendants - access to court files' dated 1 October 2018.

[2] 'Plaintiff's submissions upon production of court files' dated 1 October 2018, filed in each proceeding.

[3] [2018] VSC 602, [2]-[16].

[4] Lemery Holdings Pty ltd v Reliance Financial Services Pty Ltd; School Holdings Pty Ltd v Dayroll Pty Ltd [2008] NSWSC 1100 [26].

[5] [2013] FCA 1213.

[6] [2013] FCA 1213 [11].

[7] [2014] FCA 671; (2014) 317 ALR 708.

[8] International Litigation Partners Pte Ltd v Commissioner Of Taxation [2014] FCA 671; (2014) 317 ALR 708 [14].

[9] See: Brian Gerard Stephensen v The Salesian Society and Others; Anthony Michael Easton v The Salesian Society and Others [2018] VSC 622.

[10] Brian Gerard Stephensen v The Salesian Society and Others; Anthony Michael Easton v The Salesian Society and Others [2018] VSC 622 [18].

[11] [2009] NSWSC 210.

[12] [2014] NSWSC 359.

[14] Morony v Reschke [2014] NSWSC 359 [56].

[15] Transcript of Proceedings, Brian Gerard Stephensen v The Salesian Society and Others S CI 2014 02411; Anthony Michael Easton v The Salesian Society and Others S CI 2016 02757, Supreme Court of Victoria, 21 September 2018, 18 [26] ('Transcript').

[16] A reference is made to this report in Judge Gucciardo's reasons for sentence: [2014] VCC 2294 [46].

[17] Email From Porter Lawyers Solicitors to Judge Gucciardo's associate dated 28 April 2016.

[18] See: [2014] VCC 2294 ( Gucciardo J); the trial judge has admitted paragraphs 1-13 of the sentencing judgment into evidence, [2018] VSC 622 [20] (McDonald J).

[19] [2018] VSC 602 [38] [39] (Clayton JR).

[20] Section 32B(1) of Evidence (Miscellaneous Provisions) Act 1958.