Queensland District Court determines that notices of claim detailing complaints of child sexual abuse made by other claimants should be disclosed in unredacted form

In brief - the Queensland District Court in PG v State of Queensland [2023] QDC 109 ordered the State of Queensland to disclose unredacted copies of other claim forms, including the names of other child sexual abuse claimants. This decision highlights the significance of carefully evaluating disclosure requests.

Background

The plaintiff claimed $750,000 in damages for breach of duty, breach of statutory duty and the alleged tortious conduct of the State of Queensland, its employees, servants or agents whilst he was in the custody of Brisbane Youth Detention Centre (BYDC), a government-run facility, from 22 June 2004 to 8 September 2004.

The State had previously disclosed 52 notices of claim which were heavily redacted to remove the names of claimants, witnesses and alleged perpetrators, details of the claimants' lawyers and treating medical providers. 

The parties had executed and filed a request for a trial date. Subsequently, the plaintiff's solicitors served a subpoena on the State seeking the production of all notices of claim and other documents containing information on other complaints of child sexual abuse which had occurred at BYDC. 

In response, the State indicated that 750 other claims had been made. The plaintiff's solicitors sought disclosure of those claim documents, and other documents containing information of other complaints, but the State refused the request on the basis that the scope was too wide and not relevant to the issues in dispute. 

The plaintiff submitted that the names of the claimants, witnesses and alleged perpetrators were relevant because the plaintiff would be required to contact these persons to obtain evidence to prove the truth of his allegations, especially given the plaintiff could not recall the identity of the subject perpetrator. As such, the plaintiff argued that the privacy considerations for these other individuals were subservient to the interests of justice. 

The plaintiff made an application pursuant to rule 223(1) of the Uniform Civil Procedure Rules 1999 (UCPR) seeking disclosure of:

• unredacted copies of the notice of claim forms previously disclosed by Crown Law in heavily redacted copies 

• any document (including but not limited to records of complaints, investigation documents, liability responses, pleadings or affidavits) concerning the allegations giving rise to the alleged liability of the defendant in the notice of claim forms

• any document (including but not limited to records of complaints, investigation documents, pre-court proceedings or court documents) recording information about or allegations:

  • of sexual abuse of a juvenile detainee by a detention officer at the Brisbane Youth Detention Centre occurring in the period 22 June 1999 to 8 September 2009

  • of sexual abuse of a juvenile detainee by a detention officer in a bathroom or in connection with the purported search of the juvenile detainee at the Brisbane Youth Detention Centre occurring in the period 22 June 1999 to 8 September 2009

  • regarding the digital penetration of a juvenile detainee’s anus by a detention officer during a purported search of the juvenile detainee at the Brisbane Youth Detention Centre occurring in the period 22 June 1999 to 8 September 2009.

The State argued:

• the plaintiff had failed to prove that the State had not complied with its disclosure obligations, and the application was merely a fishing expedition 

• there was no basis for disclosure of any documents beyond 8 September 2004, as the plaintiff's period of detention at BYDC was from June 2004 to September 2004: SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor [2021] QCA 178 

• due to the nature of the complaints of sexual abuse, the public interest weighed in favour of preserving the confidentiality of the records 

• the law permits the State to redact information that is confidential and irrelevant: section 33 of Personal Injuries Proceedings Act 2002 (PIPA); Lenscak v Trustees of the Marist Brothers (No 2) [2021] VSC 49 

• investigation reports and documents resulting liability responses under PIPA would be subject of legal professional privilege. 

Findings

His Honour found:

• in respect of the time frame of relevant documents to be disclosed, a five-year period after the plaintiff left BYDC was too wide in scope. However, he considered a three-year period "would also enable a court to more safely conclude whether the systems in place were adequate" in respect of determining the plaintiff's allegation that the State failed to implement a safe system of supervision of the detainees and its employees

• the notices of claim are directly relevant to determining whether the State knew or ought to have known of other complaints of sexual abuse such that it breached its statutory duties or duty of care to the plaintiff

• the majority, if not all of the other claimants, having pursued civil claims for damages for alleged child sexual abuse, would be aware their information would be disclosed to third parties and that their allegations would be investigated by the defendant

• there was no clear basis for the redactions made by the State and unredacted copies of the notice of claim forms, including the claimants' names, should be disclosed aside from the contact details of the claimants, with the plaintiff's solicitors being required to safely secure the documents and make no copies other than one copy for counsel

• documents relating to recording of information about allegations of sexual abuse (including records of complaints, investigation documents, pre-court proceedings and court documents) are disclosable subject to any valid claim for legal privilege. 

Outcome and implications

This decision indicates that the scope of disclosure in respect of documents relating to child sexual abuse involving similar circumstances is not limited to the period of the alleged period of abuse. If the plaintiff alleges that the defendant has failed to implement a safe system of supervision, documents containing information about subsequent abuse perpetrated in similar factual circumstances may be relevant and required to be disclosed. 

Whilst this decision is not binding on other judges in the District Court, nor superior courts, it is important to carefully scrutinise requests for disclosure, and in particular whether there are genuine grounds to withhold disclosure on the basis of confidentiality and relevance. 

However, the position remains that the plaintiff still bears the onus of proving the facts of the alleged abuse. Similar fact evidence may assist the plaintiff in proving his case only if the truth of those facts are made out. What this means is that trials for historical abuse matters are likely to be very lengthy, if the parties dispute the facts of other complaints, because:

• the other complainants will need to be cross-examined as to the truth of those facts

• other witnesses may be called to contest the evidence of those complainants.