Supreme Court New South Wales Medium Neutral Citation: GAC v Trustees of the Marist Brothers [2024] NSWSC 1225 Hearing dates: 30 September 2024 Date of orders: 01 October 2024 Decision date: 01 October 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) Grant leave to the applicant to file in Court an Amended Notice of Motion dated 30 September 2024. (2) Access to the documents produced in subpoena packet S15 (the Documents) be limited to the solicitors and counsel who are retained to act for each of the parties to the present proceeding. (3) With respect to such access by solicitors and counsel, that any inspection of the Documents be limited to the parties, instructed solicitor and counsel. (4) Each party, 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. (5) Any reference to a document in evidence which refers to the plaintiff by name shall utilise the pseudonym GAC instead of the plaintiff's name. (6) GAC must bear the insurer's costs, as agreed or assessed. Catchwords: CIVIL PROCEDURE — subpoenas — to produce documents — production of documents by third party insurer — where similar documents produced by defendants subject to confidentiality order — whether confidentiality order ought be extended to documents produced by insurer Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Cases Cited: GAC v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 980 Storer v State of New South Wales [2023] NSWSC 1043 WJT v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 983 Category: Procedural rulings Parties: Proceedings 2023/185560 GAC (Plaintiff) The Trustees of the Marist Brothers (First Defendant) The Trustees of the Roman Catholic Church for the Diocese of Parramatta (Second Defendant) Notice of motion heard 30 September 2024 Catholic Church Insurance Limited (Applicant) Representation: Counsel: C Coventry (Applicant) G Choat (Plaintiff) Solicitors: Barry Nilsson Lawyers (Applicant) Koffels Pty Ltd (Plaintiff) File Number(s): 2023/185560 Publication restriction: N/A JUDGMENT 1. A third party, Catholic Church Insurance Limited, seeks confidentiality orders in respect of documents it has produced in response to a subpoena served by GAC, who has the benefit of a pseudonym order. GAC is pursuing a claim for damages for alleged historical sexual abuse which he suffered while a student at school. 2. GAC had earlier issued a subpoena to the defendants, which required the production of documents relating to other former students who had made claims of historical sexual abuse. There was an issue about access to those documents, they being the same as documents produced in other proceedings involving WJT, who is pursuing a similar claim against the defendants. 3. Faulkner J imposed a confidentiality regime in respect of the documents the defendants produced. That limited access to unredacted documents to the parties' instructing solicitor and counsel and restricted the use to which names, contact information and confidential details of persons identified in the documents could be put, without leave of the Court first being obtained: GAC v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 980 following WJT v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 983 and Storer v State of New South Wales [2023] NSWSC 1043, where Garling J had first made such orders. 4. GAC had also issued a subpoena to Catholic Church Insurance Limited, the defendants' insurer, seeking the production of similar documents. 5. The documents have been produced, but the insurer opposed the plaintiff being granted access to them, without the imposition of a similar confidentiality regime or the making of pseudonym orders in respect of other former students who had made complaints about alleged sexual abuse who were identified in the documents. 6. That was not agreed, with the result that the insurer filed a motion, seeking such orders. At the hearing of that motion I made orders extending the confidentiality regime to the documents the insurer had produced, for reasons which follow. 7. The orders sought were not consented to by GAC who contended, amongst other things, that the basis for the orders sought was necessarily speculative, incapable of achieving their aims and resulting in significant unnecessary time and costs. 8. Such arguments had also been earlier advanced before Faulkner J, who did not accept them. His Honour's decision has not been appealed and there was no question that the parties remain bound by the orders which he made. Order 3 relevantly provides: "(a) access to the documents produced in subpoena packets S-11 and S-14 be limited to the solicitors and counsel who are retained to act for each of the parties to the proceeding; (b) with respect to such access by solicitors and counsel, any inspection of the documents in subpoena packets S-11 and S-14 be limited to the parties, instructing solicitor and counsel; and (c) each party, solicitor and counsel will not use or disclose further the identifying details, being the names, addresses, telephone number or other confidential details of any person identified in the documents in subpoena packets S-11 and S-14 without leave of the Court first being granted." 1. Faulkner J also there noted that Order 3 was "not intended to prevent solicitors and counsel from seeking instructions from their clients with respect to the content of the documents or, subject to Order 3, the use of the documents for the purposes of the proceedings only". 2. Obtaining the same or similar information as the result of the insurer's production of documents in its possession could not circumvent the consequences of Order 3(c). 3. The affidavits on which GAC relied disclosed that there may already have been a breach of Faulkner J's orders when GAC's solicitors disclosed to the insurer the documents the defendants had produced. That was pursued in an endeavour to have the insurer ascertain whether the documents it had produced disclosed information about other complainants. 4. The insurer refused to engage in that comparative exercise of a large number of documents, when it appreciated the effect of the orders Faulkner J had made. Mr Choat, who appeared for GAC, apologised for the breach of the orders involved in the course he had pursued, which arguably amounted to a contempt. That need not now be addressed. 5. For GAC it was finally accepted that if the documents the insurer produced disclosed the identity of, or information about, others who have made allegations about past sexual abuse, of which he was not already aware, the confidentiality regime should be extended to those documents and such information. 6. That being accepted, I concluded that the orders sought should be made. 7. It should be noted that the insurer is not conducting these proceedings on behalf of the defendants and while it has insured each of the defendants at some point in time, whether it was the insurer at the time of GAC's alleged abuse has not yet been ascertained. Nor is it a party to the proceedings. 8. Any information which the insurer has about other former students who have made claims of historical sexual abuse, is still likely also to have been in the defendants' hands. Although it is possible that the insurer has documents of which the defendants have no copy. It is also possible that those documents identify the names, contact information or confidential details of persons identified in the documents who have made other allegations of abuse, of which all parties are not yet aware. 9. That being so it was difficult to understand why the orders sought by the insurer were not consented to, or why it was considered that it was for the insurer to determine whether the documents it had to produce disclosed further information not earlier disclosed by the documents the defendants had produced, to which it was not entitled to have access. 10. What lay in issue between the parties had to be resolved in light of the requirements of s56 of the Civil Procedure Act 2005 (NSW) and the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings, 11. GAC's resistance of the extension of the confidentiality regime to the documents produced by the insurer did not accord with the obligations which s56 imposes on the parties. 12. In WJT Faulkner J explained how, like GAC, others who have complained about historical child sexual abuse may be adversely affected by the disclosure of the information to which GAC sought unrestricted access. It was not suggested that his Honour had erred in so concluding. To the contrary, his Honour's conclusions were accepted. 13. His Honour was not persuaded by the evidence of Mr Choat about his views and experiences of having contacted victims of such abuse and the limited impact which he considered that had upon them, there described as making "cold calls": see WJT at [34]-[37]. Nor am I, notwithstanding the further affidavit evidence Mr Choat gave on this application. 14. Mr Choat's evidence can still rise no higher than his own perceptions and that of the colleague to whom he again referred, about the responses of victims of child sexual abuse to receiving a cold call about their experience: WJT at [37]. His affidavits again paint an entirely different picture in relation to GAC, that explaining why he required the protection of the pseudonym order Faulkner J has made. 15. That others who, like GAC and those to whom the confidentiality regime applies, have made complaints about historical child sexual abuse do not require the protection of such a regime, given the potential adverse consequences for them of their involvement in GAC's proceedings, is not apparent. 16. As the result of Faulkner J's unchallenged orders, those who have been identified as the result of the defendants' answers to GAC's subpoena have been provided with that protection. That regime cannot be circumvented or undermined by the service of a subpoena on the insurer or its production of documents which may identify other complainants. 17. In all the circumstances I was satisfied that justice required that orders extending the confidentiality regime to the documents the insurer had produced had to be made, in order to support the confidentiality regime and provide for its extension to any others who the documents the insurer produced disclose have also made complaints about historical child sexual abuse. Costs 1. The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event. In this case that is an order that GAC bear the insurer's costs. 2. That order was resisted by GAC, who relied on Faulkner J's conclusion in WJT that he and the defendants should bear their own costs, because it would have been necessary in any event for the parties to be heard about access to counselling records there in issue, given that the provisions of the Court Suppression and Non-publication Orders Act required a hearing before the Court, even if the Defendants had not opposed the orders sought. Such orders affecting the administration of justice and therefore having to be considered and made in open court: at [68]-[70]. 3. I am not persuaded that the usual order should not be made in this case, the circumstances arising to be considered being relevantly different. 4. The insurer was not a party to the proceedings and had what was finally acknowledged for GAC been earlier accepted, it is apparent that considerable costs would have been avoided both by GAC and the insurer, given all that was involved in the resistance of the extension of the confidentiality regime and its consequences. 5. In the result I am satisfied that GAC must bear the insurer's costs, as agreed or assessed. Orders 1. For these reasons at the hearing I ordered that: 1. Grant leave to the applicant to file in Court an Amended Notice of Motion dated 30 September 2024. 2. Access to the documents produced in subpoena packet S15 (the Documents) be limited to the solicitors and counsel who are retained to act for each of the parties to the present proceeding. 3. With respect to such access by solicitors and counsel, that any inspection of the Documents be limited to the parties, instructed solicitor and counsel. 4. Each party, 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. 5. Any reference to a document in evidence which refers to the plaintiff by name shall utilise the pseudonym GAC instead of the plaintiff's name. Further order 1. I now further order that GAC must bear the insurer's costs, as agreed or assessed. ********** 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: 01 October 2024