A commentary on the law and principles of discovery and in particular complaint documents in Victoria in the institutional liability space.
Discovery is a process whereby a party to a proceeding discloses to the other parties documents that are relevant to the issues in dispute.
Recent case law demonstrates that complaint documents should be produced, but which complaint documents are relevant to discovery is still contentious.
What legislation and rules apply to discovery obligations in Victoria?
For the Supreme Court in Victoria, the Civil Procedure Act 2010 (Vic), and Order 29 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), set out a party's discovery obligations. Other legislation includes the Evidence (Miscellaneous Provisions) Act 1958 and legislation particular to this area including for example the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth).
When does discovery occur?
In Victoria, discovery usually takes place once the parties have finalised the pleadings and the Court set out a timetable ahead of trial, which includes a date of production for discovery.
What is the scope of discovery?
The scope of discovery in Victoria is set out in Regulation 29.01.1 of the Supreme Court (General Civil Procedure) Rules 2015. This rule provides that the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given:
(a) Documents on which the party relies;
(b) Documents that adversely affect the party's own case;
(c) Documents that adversely affect another party's case;
(d) Documents that support another party's case.
If a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover the document.
Further, if a party required to give discovery who has, or has had in the party's possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason of the fact that the original or any other copy is discoverable.
The scope of discovery will go to what issues are in dispute. Therefore, what is pleaded in a Statement of Claim and what is admitted and/or denied in a Defence, is of particular importance.
The scope of discovery is a contentious issue in Victoria, particularly regarding complaint documents in institutional liability cases, and is explored in some detail in the following recent decisions of the Victorian Supreme Court.
What is considered a reasonable search?
In making a reasonable search, a party may take into account the following considerations:
(a) The nature and complexity of the proceeding;
(b) The number of documents involved;
(c) The ease and cost of retrieving a document;
(d) The significance of any document to be found; and
(e) Any other relevant matter.
A party must disclose all relevant documents in their possession and file an Affidavit of Documents listing the documents. The Affidavit must also include a section for the party to where the party making the affidavit claims that any document in that party's possession is privileged from production, and state sufficiently the grounds of the privilege.
Section 32C of the Victorian Evidence (Miscellaneous Provisions) Act 1958 excludes parties from compelling "confidential communications" in proceedings.
A literal interpretation of this definition would apply the confidential communication provisions to all communications in the context of a medical or counselling relationship provided the relevant person who has been, or is alleged to have been, the victim of a sexual offence. Victorian Courts have accepted that such a literal interpretation would pose practical difficulties as the party seeking production of the material may not know whether the other person has been the alleged victim of a sexual offence, or whether the communication relates to treatment for that alleged offence.
Due to the practical consequences, the few decisions on this provision have to date rejected this literal interpretation and determined that the confidential communication provisions will only apply where the confidential communication relates to the subject matter of the alleged sexual offence and there is a relationship between the relevant litigation and the alleged sexual offence.
Institutional defendants also now have in their possession Commonwealth Redress Scheme complaint documents following the institution of the scheme under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth).
The recent Associate Justice decision in the Supreme Court of Jagoe v Trustees of the Marist Brothers & Anor  VSC 563 made findings regarding Redress complaint documents, however this area has not been fully tested.
This case has not been adopted in other jurisdictions. For more on the production of documents, see our article, Responding to Requests for Records.
What is 'The Implied Undertaking'?
The implied undertaking, more commonly referred to as the Harman Undertaking, provides that the party receiving documents cannot use or disclose the documents (or information within those documents) for a purpose other than a purpose relevant to the proceedings for which discovery is made.
Controversy: What is the scope of complaint documents to be discovered? A case review
Valentini (a pseudonym) v Trustees of the Marist Brothers (Costs)  VSC 550 (16 September 2022)
Although this decision is in relation to costs (which was not made out, and that there was no breach in respect of the defendant's discovery obligations), the scope of the institutional defendant's discovery was one of the central issues raised. In this matter, the Court reiterated the ongoing obligations of parties to provide discovery with further and more detailed searches being made over the course of the litigation and "the question of whether they are in the possession or power of a party turns on whether the defendant has a right to possession, or has documents in its power or control".
An issue raised was a discrepancy between the documents produced by the Defendant, and the documents produced by Catholic Church Insurance Limited, the Defendant's Insurer. The Court found that CCI, as the Insurer, was not a party to the litigation and discovery does not extend to documents held by an insurer. It was accepted that "documents held by the Insured and those held by its Insurer will not always be identical. There will be many reasons why this might be so". The Court comments further on the contractual nature of a relationship with an insurer, who was not a party to the litigation and documents are able to be obtained by way of subpoena.
The Court stressed "the importance of discovery to the proper administration of justice in resolving disputes cannot be overstated".
John Doyle v The Salesian Society (Vic) Inc (No 1)  (21 October 2021 given ex tempore, revised)
This decision was given later the same year by Associate Justice Ierodiaconou, the same judge as the Lenscak decision below.
This judgment confined discovery of complaint documents to complaints relating to allegations of abuse that occurred prior to and including the relevant time period, whenever the complaint documents were received by the defendant:
In order to ensure discovery remains focused on the real issues in dispute, it should not be expanded to all claims and files at any time. The question of exemplary damages should not expand that focus. The question is what the defendant could and should have done to prevent the alleged abuse of the plaintiff. In response to the plaintiff's concerns about later complaints including historical records, I will say the following: it matters not when the claims about the abuse were made. The focus is on when the alleged abuse occurred.
The Court found that the following governance documents should also be included in the Defendant's discovery:
All documents of the Provincial and Provincial Council including minutes, records of meetings, records of allegations of sexual abuse, and visitation reports regarding the Victorian and Tasmanian Salesian institutions during the years in which Paplinski [alleged offender] worked at those institutions, and the subsequent year.
Lenscak v Trustees of the Marist Brothers (No 2)  VSC 49 (15 February 2021)
The Lenscak decision also found that complaint documents should be discovered in the circumstances of the case where much of the claim was not admitted and was in dispute, finding that:
The documents evidencing abuse allegations by other complainants may be significant in respect of issues such as foreseeability and damages.
The Court determined that the "question as to the knowledge of the different defendants about any sexual abuse of children beyond the Southern Province, or the extent to which any such knowledge may be imputed to the first defendant, is one for trial".
In particular, the Court found that "prima facie whole documents need to be produced for inspection. Where there is redaction, the onus rests upon the party to establish an appropriate basis for it. Ultimately, 'the Court will focus on ensuring the attainment of justice between the parties".
Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc  VSC 602 (11 October 2018)
This was a decision of Judicial Registrar Clayton (as she was then) in response to a subpoena objection by the insurer of the institutional defendant. JR Clayton found that the documents produced should include complaint documents prior to the relevant time period for the alleged perpetrators, and although she cautioned that complaints received many years later are of limited value, she ultimately found these complaint documents should be produced as these documents may go to what a defendant "ought to have known", whenever received:
If claims were made and compensation paid, such documents would clearly go to the knowledge of the defendants about allegations of sexual assault. However, documents relating to claims made and compensation paid after 1980, even where they relate to allegations before 1980, are in a different category. The fact that a claim was made, possibly many years later, does little to assist the plaintiffs' claim that the defendants had actual knowledge of the abuse. I accept, however, that evidence about other claims made relating to the relevant period, even if those claims were made many years later, are relevant to the allegations that the defendants ought to have known that the abuse was occurring.
We note that the Judicial Registrar's decision regarding production of complaint documents was accepted by Associate Justice Ierodiaconou (the same judge as the Doyle and Lenscak decisions) in Stephensen v The Salesian Society Inc & Ors; Easton v The Salesian Society Inc & Ors (No 2)  VSC 630.
Subpoenas v Discovery
Subpoenas in proceedings are used to compel information from third parties who are not joined to the proceedings and can be very onerous. There are a number of decisions in relation to subpoenas and many of the same principles apply.
The recent decision of James Smith v Trustees of the Christian Brothers and Gary Pearce v The Corporation of the Society of the Missionaries of the Sacred Heart  VSC 343 (21 June 2022) dealt with a subpoena objection made by Catholic Church Insurance Limited (CCI), the Defendant's insurer, regarding "revisit" claims where plaintiffs were seeking to set aside prior deeds and the subpoenas sought documents regarding the use of the "Ellis" defence. In this matter, the Court considered whether the subpoena served a legitimate forensic purpose, or whether it was oppressive due to the wide scope. CCI objected, arguing based on the scope of documents sought, the Plaintiffs were attempting to use the subpoena process as a substitute for discovery. On the other hand, the Plaintiffs submitted that the authorities made clear that greater latitude is allowed in subpoenas addressed to third parties because there is no discovery power available in respect of such parties. The Court found that the documents sought went directly to an issue that was contested by the plaintiff's applications made in the proceedings and that the documents should be searched for and produced.
What are we seeing in practice?
The rulings on the scope of discovery and subpoenas in the institutional liability space in Victoria have all been made by a judge alone in the first instance in the Supreme Court. Discovery continues to be a contested issue in the institutional liability space, with discovery placing a heavy and expansive onus on institutional defendants.
As briefly touched on above in the case review, there is little consistency in the common law decisions regarding production of complaint documents. What complaint documents should be produced is still very much a matter of interpretation and the particular pleadings of a case. We expect to continue to see discovery disputes in this space, particularly as more matters proceed closer to hearing.
Until a decision on discovery in institutional liability cases is reached by a superior court, it is an open field for disputes around the scope of discovery to continue to arise.