Supreme Court New South Wales Medium Neutral Citation: Peters (a pseudonym) v Trustees of the Marist Brothers [2022] NSWSC 1475 Hearing dates: 29 August 2022 Decision date: 31 October 2022 Jurisdiction: Common Law Before: Button J Decision: (1) The plaintiff may issue, and the defendant must answer, a subpoena addressed to the defendant to the following effect: seeking production of all written or recorded statements of persons directly alleging themselves to be victims whilst under the age of 18 years of sexual abuse or sexualist behaviour on the part of Mr Cable, involving penetration, touching or indecent acts (including verbal acts). (2) Costs reserved. Catchwords: CIVIL PROCEDURE – subpoenas – application to set aside – legitimate forensic purpose in establishing tendency in historical sexual abuse proceedings – paragraph narrowed with consent of plaintiff Legislation Cited: Evidence Act 1995 (NSW) National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) Cases Cited: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Gill v Trustees of the Marist Brothers [2022] NSWSC 1087 LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323 National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 R v Saleam [1999] NSWCCA 86 R v Saleam (1989) 16 NSWLR 14 TL v The King [2022] HCA 35 Category: Procedural rulings Parties: Mark Peters (a pseudonym) (Plaintiff) Trustees of the Marist Brothers (Defendant) Representation: Counsel: S McCarthy (Plaintiff) G Watson SC (Defendant) Solicitors: Koffels Pty Ltd (Plaintiff) Carroll O'Dea (Defendant) File Number(s): 2021/334681 Publication restriction: A pseudonym used for alleged victims of child sexual assault JUDGMENT Introduction 1. This judgment resolves a dispute that came before me in the Duty List some weeks ago. Although underpinned by opposing Notices of Motion filed by each of the parties, it can conveniently be thought of as a dispute about whether the plaintiff should be permitted to issue a subpoena within certain parameters against the defendant, and have it answered. For the following reasons, I consider that the answer is in the affirmative. Background 1. The plaintiff (to whom I shall refer as necessary as "Mr Peters") has filed a Statement of Claim in this Court on 24 November 2021. In a nutshell, he alleges that in 1969 and 1970 he was enrolled in a school operated by the Trustees of the Marist Brothers, the defendant. In those years, he was in either year 5 or year 6. It is alleged that a Mr Cable was a member of the unincorporated association that is the defendant, and employed (I use that term broadly) as a teacher by it. On at least ten occasions, it is asserted, Mr Cable sexually assaulted the plaintiff. 2. The claim against the defendant is either for the intentional tort of trespass to the person (on the basis that the actions of Mr Cable are to be attributed to the defendant by way of vicarious liability); or, in the alternative, for the tort of negligence, on the basis that the defendant had either actual or constructive knowledge of the conduct of Mr Cable, and breached its duty of care by failing to forestall it. 3. In paragraph 10 of the Statement of Claim, the plaintiff asserts that Mr Cable committed many sexual offences against children who were students of schools operated by the defendant. Those acts, it is said, commenced no later than 1960. It is also asserted that, in 1967, an investigation was carried out by a member of the defendant that "uncovered that Cable had been sexually molesting young boys". Furthermore, it is said in the Statement of Claim that the defendant did not keep written records of allegations against members of its association, or admissions by them, to do with child sexual assault, before the year 1983. 4. In a Defence filed on 22 April 2022, the defendant does not admit the fundamental proposition in the Statement of Claim that Mr Cable sexually assaulted the plaintiff "[d]uring around Years 5 and or 6 in 1969 and 1970". 5. Furthermore, in answer to paragraph 10 of the Statement of Claim, the Defence admits that the defendant has received complaints from other former students of sexual abuse by Mr Cable, committed before 1969. Conversely, the assertion in the Defence is that those complaints were not received by the defendant until after 1971. 6. The Defence further responds to the same paragraph in the Statement of Claim by admitting that, in 2016, a former student ("Frederick") of a school operated by the defendant provided a statement to a Royal Commission to the effect that, in 1967, a member of the association of the defendant, Brother Kevin, spoke to the father of Frederick. He informed the father that there had been a complaint by other parents about the behaviour of Mr Cable. The father of Frederick informed the member of the association that Mr Cable had sexually assaulted Frederick. 7. The Defence also admits that, in 2014, a further former student ("Samuel") provided a statement to the police alleging that, in 1967, he had been sexually assaulted by Mr Cable, and that, a few days later, Samuel informed Brother Kevin about what had happened. 8. Turning now from the pleadings to the salient evidence placed before me on the motion, it included the remarks on sentence of Judge Whitford SC, who, in 2015, sentenced Mr Cable to many years in prison for sexually assaulting seventeen victims, all of whom I understand to have been boys in his care. There were also extracts from the reports of the Royal Commission to which I have referred, detailing the crimes of Mr Cable. 9. Finally in this thumbnail sketch, it was an agreed fact between the parties from the Bar table that Mr Cable left the employment of the defendant in 1978. Submissions of the plaintiff 1. Because of the helpful refinement of issues that occurred at the hearing, the following conspectus focuses upon the oral transcript, I regarding the written submissions as having been superseded. 2. Counsel for the plaintiff made clear that the only clause of the schedule of the draft subpoena attached to an affidavit of the solicitor for the plaintiff of 8 June 2022 that is pressed is clause 2. 3. He also accepted that it could be narrowed by me to read so as to command the production of all written or recorded statements of persons directly alleging themselves to be victims whilst under the age of 18 years of sexual abuse or sexualised behaviour on the part of Mr Cable, involving penetration, touching, or indecent acts (including verbal acts). 4. Based upon that tightening of focus, he submitted that the subpoena cannot be thought of as oppressive or otherwise too widely drawn; in any event, he submitted, there was no evidence of the former placed before me. 5. He conceded that answering the subpoena may give rise to questions of privilege pursuant to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) or otherwise, and accepted that resolution of this motion in his favour would say nothing about any such claim subsequently mounted. 6. In light of the issues joined in the pleadings and the facts in issue between the parties as presently understood as a result, he submitted that the subpoena possesses four legitimate forensic purposes. 7. The first was said to be that, if the defendant were held liable to the plaintiff, the question of exemplary damages could be informed by any knowledge possessed by the defendant of any similar actions of Mr Cable committed after the alleged acts against Mr Peters, if the defendant did nothing to stop those subsequent actions. 8. The second was that, bearing in mind that the nub of the Statement of Claim is not admitted by the defendant, the plaintiff would certainly seek to rely upon admissible evidence of other similar acts committed by Mr Cable against other male children as tendency evidence. In other words, any such other acts would be relied upon as circumstantial evidence going towards proving paragraph 8 of the Statement of Claim: see generally Evidence Act 1995 (NSW) s 97, and, most recently, the decision of the High Court of Australia in TL v The King [2022] HCA 35. 9. Thirdly, in seeking to prove vicarious liability, and accepting the prima facie difficulty in doing so when one seeks to ascribe crimes of an employee to an employer, it was said that other allegations of child sexual assault committed in certain circumstances of the employment of Mr Cable could go to show that he fulfilled a special role within the defendant association. 10. Fourthly, with regard to negligence, and the requisite actual or constructive knowledge, it was said that the state of any information provided to the defendant before the alleged behaviour of Mr Cable towards the plaintiff could inform that question. To be clear: counsel accepted that this legitimate forensic purpose could only pertain to complaints received by the defendant before the alleged events of 1969 or 1970. 11. Finally, counsel submitted that, in light of the remarks on sentence of Judge Whitford SC, and the materials from the Royal Commission, it could not be said that (to mix metaphors) the material sought was not "on the cards", or was sought by way of a speculative "trawling of the lake": see generally Commissioner for Railways v Small (1938) 38 SR (NSW) 564; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250; R v Saleam (1989) 16 NSWLR 14; R v Saleam [1999] NSWCCA 86. Submissions for the defendant 1. Senior counsel resisted clause 2 of the draft subpoena as narrowed above on the following bases. 2. First, he submitted that, rather than me permitting a single redrafted clause of a draft subpoena first notified many weeks ago to be advanced, the better course would be for the lawyers for the plaintiff to reflect further, and simply start again. 3. Secondly, having drawn attention to the entirely separate question of privilege, he made clear that it was not relied upon for the purposes of this discrete question, but was certainly not formally or informally waived by any person. 4. Thirdly, he submitted that the narrowed clause remains simply too broad, bearing in mind that it calls upon an association that operates dozens, if not hundreds, of schools throughout Australia, to search its records pertaining to complaints about an individual who was employed by that association for at least eighteen years. In that regard, senior counsel invited attention to the recent judgment of Garling J (whose expertise with regard to this kind of substantive claim, I interpolate, is well-known) refusing to permit a certain subpoena to be issued: see Gill v Trustees of the Marist Brothers [2022] NSWSC 1087 ("Gill v Marist Brothers") 5. Finally, he emphasised that the Defence admits that complaints about the conduct of Mr Cable before 1969 were indeed received by the defendant. But the statements to the Royal Commission and to the police about complaints said to have been made to the defendant before 1969, were not provided to those two organisations until literally decades after 1969. 6. In other words, as I understood the submission, on the material placed before me, there is a serious question as to whether or not any documented complaints about the conduct of Mr Cable, received by the defendant after the nub of the Statement of Claim, could play any probative role in the trial. Determination 1. Turning to my determination, although the plaintiff relied upon four asserted legitimate forensic purposes, it is only necessary for me to be satisfied that one of them has been established as a step towards being satisfied that the subpoena as proposed should be permitted. 2. On the evidence placed before me, and bearing in mind that the crucial allegation upon which the whole claim turns is not admitted by the defendant, I consider that direct complaints of other persons of having been sexually assaulted by Mr Cable when they were a child could certainly serve as probative tendency evidence that circumstantially informs the fact in issue of whether Mr Cable, when a teacher, did indeed sexually assault Mr Peters, when a schoolboy. 3. Bearing in mind the breadth of the test to be found in s 97 of the Evidence Act that applies in civil proceedings, and the breadth of the concept of probative value as defined in the Dictionary of the same Act, I believe that such evidence could (at the least) be admissible in that way. 4. Nor, in the sense of assessing probative value, does the fact that an asserted sexual assault of another child may have occurred in a different year or a different school or a different geographical location detract from my affirmative satisfaction that such a complaint may indeed be admissible and highly relevant. 5. Furthermore, although the period of employment of Mr Cable was over eighteen years, I do not believe that such a subpoena would be in any sense too broad from a logistical perspective. After all, only direct complaints about one individual employee are sought. 6. Finally, in light of the plethora of evidence of the other crimes of Mr Cable, combined with the fact that the defendant admits that there does indeed exist evidence of persons having made complaints to the defendant about the conduct of Mr Cable, I am well satisfied that such a subpoena would not constitute impermissibly "trawling a lake" as a mere exercise in speculation. 7. Finally, turning to the judgments of Fagan J and Garling J, it is true that in Gill v Marist Brothers, Garling J set aside the disputed paragraph of a Subpoena to Produce, and a Notice to Produce, on the basis that the documents sought were irrelevant and the paragraph was otherwise too vague, uncertain, and unlimited in time. 8. But it was conceded by senior counsel for the defendant before me that that paragraph was far broader than that currently in dispute. Garling J's decision was also based upon a lack of congruence between the paragraphs of the Statement of Claim and the documents sought. I believe that this matter is readily differentiated, for the primary reason that it is not apparent from the judgment that the plaintiff in that matter had been put to proof of the sexual abuse itself, nor that a tendency argument was being foreshadowed (as here) for the purpose of such proof. 9. The decision of Fagan J in LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323 concerned a dispute regarding the redaction of names of complainants from subpoenaed documents. While the issue at hand is not identical, I respectfully believe that his Honour's broad approach to relevance in [27] to [28] is apposite. As conceded by counsel for the defendant, the mere fact that a document produced may not be admissible in the substantive proceedings, or indeed chosen to be tendered by the subpoenaing party, is not determinative of whether it should be made amenable to subpoena: see generally National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372. That is for the simple reason that an inadmissible document produced on subpoena may generate a line of enquiry that leads to evidence that is admissible. 10. For all of those reasons, I propose to permit a subpoena containing clause 2 as amended in [13] above to be issued, and to direct that it must be answered. 11. Finally on the substantive question, I emphasise my acceptance of the joint position of the parties that the question of any claim for privilege is an entirely separate one. Therefore, this judgment in favour of the subpoena says absolutely nothing about that separate question. Costs 1. The question of costs was not addressed in a busy Duty List. Although the position of the plaintiff admitted of some narrowing of the clause at the hearing, even so he enjoyed substantial success. For that reason, my initial thought for the benefit of the parties is that he should have his costs of the motion. 2. If that position is accepted by the parties, I shall make such an order in Chambers once provided with written notifications of that acceptance. If it is not accepted, brief written submissions about the question of costs will be invited by my Associate in accordance with a tight timetable that she will notify to both legal teams as necessary. For the time being, costs are reserved. Orders 1. The plaintiff may issue, and the defendant must answer, a subpoena addressed to the defendant to the following effect: seeking production of all written or recorded statements of persons directly alleging themselves to be victims whilst under the age of 18 years of sexual abuse or sexualised behaviour on the part of Mr Cable, involving penetration, touching, or indecent acts (including verbal acts). 2. Costs reserved. ********** 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: 04 November 2022