In the recent matter of WJT v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 983, the plaintiff, WJT (a pseudonym), brought proceedings against the defendants, the Trustees of the Marist Brothers and the Trustees of the Roman Catholic Church for the Diocese of Parramatta in relation to a historical abuse claim.
The Plaintiff alleges that he suffered physical and sexual abuse between 1988 and 1993 when he was a student at Parramatta Marist Brothers High School. Three staff members who were then at the school are named as perpetrators. The Defendants are alleged to be legally responsible for the abuse as institutions standing in the place of the unincorporated associations which, it is alleged, negligently failed to prevent the abuse and/or are vicariously liable for the abuse perpetrated by the three staff members. The Defendants have filed Defences in which most allegations are not admitted, and some allegations are denied.
By virtue of the pleadings, the issues in the case include the Defendants’ knowledge, actual or constructive, of a foreseeable risk posed by the three alleged perpetrators. There are also issues about the roles into which the Defendants placed the alleged perpetrators for the purposes of the case based on vicarious liability.
The particulars of the Plaintiff’s subpoenas are not relevant other than to say that each required production of extensive school records which in the ordinary course would include the names and other details of former students who may have been victims of abuse at Parramatta Marist Brothers High School before 1993. Prior to the subpoenas being answered there was no application to set aside either subpoena. Each Defendant made its respective answer to the subpoenas in October 2023 by producing documents to the Court.
Each Defendant produced a bundle of redacted documents. The solicitors acting for the Defendants have made Affidavits in which they say that the redactions were made to protect the identity and personal information of claimants and potential claimants of historical abuse. I accept that evidence. The fact that some of the redactions conceal the names of the alleged perpetrators and indeed the name of the Plaintiff himself does not demonstrate otherwise.
The Defendants submitted that the Court ought to impose a term to ensure that any intrusion into the privacy of the former students named in the counselling records is carried out in a reasonable way which has regard to the interests of those former students. The Defendants submitted that such a requirement ought to be imposed by the Court in this case because it is warranted by the nature of the Plaintiff’s case and the enquiries which the Plaintiff’s solicitors legitimately may wish to pursue with the former students.
The Plaintiff did not consent to the imposition of the term.
Both parties addressed these issues by describing the approach by the Plaintiff’s solicitors to former students as making “cold calls”. The Plaintiff submitted that there is only a remote risk of harm being caused by students receiving cold calls about childhood sexual abuse. The court, however, did not find that evidence reassuring (at [36] to [43]).
Ultimately, on 8 August 2024, the New South Wale Supreme Court permitted the Plaintiff’s solicitors access to unredacted records subject to the following orders (at [48]), of which the third order is perhaps the most significant:
(a) access to the [unredacted counselling records] be limited to the solicitors and counsel who are retained to act for each of the parties to the present proceeding;
(b) with respect to such access by solicitors and counsel, that any inspection of the documents in unredacted form be limited to the parties, instructed solicitor and counsel; and
(c) each party’s solicitors and counsel will not further use or disclose the identifying details, being the names, addresses, telephone number or other confidential details of complainants other than the plaintiff without leave of the Court first being granted.
The Court further ordered that each party bear its own costs of the Plaintiff’s Notice of Motion dated 27 May 2024 and each of the Defendants’ Notices of Motion dated 28 June 2024 and the hearing on 9 July 2024.
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