Discovery of prior-complaints and privacy concerns in abuse cases13 June 2022
Plaintiffs have long argued prior reports of abuse are discoverable to prove foreseeability and breach in their claims. The recent decision of Lenscak v Trustees of the Marist Brothers & Ors (No 2) (Lenscak) arguably expands a defendant’s duty of disclosure regarding prior complaints. Lenscak further considered when redactions will be suitable to protect the privacy of complainants.
The Plaintiff alleged he was sexually abused in 1981 when he was a student at St Paul’s College in Traralgon. The Plaintiff alleged his former teacher, Michael Benedict Tobin (aka Brother Aubrey), was the abuser. Tobin was deceased when the Court considered this matter.
St Paul’s College was operated by the Defendants’ Southern Province. The Defendants disclosed documents relating to the Southern Province. Some details of past alleged abuse with the contact details and names of complainants were redacted. The Defendants further disclosed all prior complaints relating to Tobin, including incidents in the Northern Province’s institutions.
The Plaintiff felt the disclosure was inadequate. The interlocutory issues to be determined were:
- Were documents from the Northern District disclosable?
- Should contact details of past complaints be redacted?
Northern District Documents
In requesting disclosure, the Plaintiff noted prior complaints in abuse cases are highly relevant with respect to foreseeability and implementation of the duty of care. It was a matter for the Defendants to establish that knowledge of sexual abuse in one province did not mean another province automatically had the same knowledge. The Plaintiff noted the Defendants’ evidence at the Royal Commission indicated a digital database existed regarding reported abuse. The Plaintiff was seeking an order that somebody “pushes the button” and prints the records.
In resisting the request, the Defendants noted all documents relating to Southern Province sexual abuse known prior to 1981 were discovered. Going beyond the Southern Province was a fishing expedition. The Southern and Northern Provinces operated independently and thus Northern Province documents were not discoverable. While a digital database of some documents existed, there were thousands of archived documents not digitalised which required extensive manual review.
The Court ordered disclosure of the Northern District Documents on three grounds:
- The Supreme Court (General Civil Procedure) Rules 2015 (Vic) requires production of documents which support another party’s case or could adversely affect the party’s own case. The question of whether there was a flow of information between the Southern and Northern Provinces was a matter for trial. The Court noted for the most part, documents were easily accessible via a digital database. Given the documents “may be significant in respect of issues such as foreseeability and damages”, the Northern District Documents should be disclosed.
- The nominated entity in the proceedings was the Trustees of the Marist Brothers, not the Southern Province of the Order. In pleadings, the Defendants admitted they were a proper nominated entity. No evidence existed regarding the relationship between the Southern and Northern Provinces. As such, disclosure was favoured so the issue could be ventilated at trial.
- It was common ground Tobin worked in the Northern Province prior to working in the Southern Province. While discovery of Tobin’s Northern Province documents had been seen to, the Court opined separating the two entities would be “drawing an artificial distinction… to limit the search of other abuse allegations contained in the defendant’s digital records to the Southern Province.”
The Court ordered disclosure of Northern Province documents accordingly.
Documents that had been disclosed contained redactions to conceal the identity and contact information of some prior complainants. Contact information had been released for a family member who previously advised the Defendants they wished to assist future victims; and one complainant’s details was inadvertently disclosed. The Plaintiff requested unredacted versions of all documents be produced, justified on the basis of allowing them the opportunity to contact witnesses and prove their case.
The Court noted that prima facie, entire documents must be produced for inspection. There is a balancing act in sexual abuse cases to protect the identity of sexual assault complainants and their families.
Relevantly, one of the complainants was deceased. It was not appropriate to reveal the identity of family members who had not consented to providing their contact details. The inadvertent disclosure was corrected as it was unknown if they were alive, and if they were, would consent to their information being released. Another document contained redactions from the Commonwealth Redress Scheme, and the Defendants did not hold unredacted copies. Finally, the Defendants were not disputing the complaints were made and there was little utility in releasing contact details of prior complainants.
Redaction of previous records was maintained accordingly.
Impact to Practice
Depending on the makeup of an institution, disclosure could be required of all entities controlled by a defendant, not just the entity where the abuse allegedly occurred. Institutions are likely to see plaintiffs attempt to widen their disclosure requests in light of the findings in Lenscak. The findings in Lenscak will not apply to all instances and legal advice should be obtained to determine the breadth of disclosure obligations.
If previous complaints and/or their family members have not provided consent to releasing their contact information, the principle of protecting the privacy of complainants remains.
If you have any questions on the attached article, please contact Yvette McLaughlin.
1.  VSC 49.