JM v Trustees of the Marist Brothers

1. [1]

   In 2009 the plaintiff brought proceedings against the defendant for damages arising from sexual abuse he says that he suffered at the hands of a nominated Marist Brother when he was a student at a school in Sydney’s south-west.

2. [2]

   In 2011, some months after a mediation, the plaintiff settled that claim and accepted what he says was a compromised sum by way of damages. The parties entered a deed of settlement reflecting the agreement they had reached.

3. [3]

   The plaintiff commenced new proceedings in this Court on 21 January 2023.

4. [4]

   Pursuant to Pt 1C of the Civil Liability Act 2002 (NSW), which was introduced following the Royal Commission into Institutional Responses to Child Sexual Abuse, he seeks to set aside the deed of settlement. The notice of motion seeking the order to set aside the deed is to be heard next week on Thursday 21 November 2024. The present skirmish, which involves whether to grant access to documents produced under subpoena to the defendant, needs to be resolved before then and for that reason this judgment will be brief and possibly a little incoherent. The matter is before me in the duty list and was brought by notice of motion filed by the defendant.

5. [5]

   In support of what I will call “the set-aside motion”, the plaintiff filed at least two affidavits. The first is his own affidavit affirmed on 1 February 2023. The second is that of his solicitor, Mr Parkinson, affirmed on 21 February 2023.

6. [6]

   The defendant filed a subpoena on 19 April this year seeking production of “the complete legal file in respect of the plaintiff”. The schedule went on to provide a non-exhaustive list of documents, all of which relate to the litigation commenced in 2009 and the settlement agreement and deed in 2011.

7. [7]

   The plaintiff says that the file contains information that is privileged and, reading between the lines, is the subject of litigation privilege under s 119 of the Evidence Act 1995 (NSW) and/or privilege over legal advice under s 118 of that Act. There is no doubt that is, on its face, correct and that the file would be caught by those provisions. However, the defendant asserts that the plaintiff has, to use the language of the common law, “waived privilege”. More specifically it says there has been an issue waiver.

8. [8]

   In accordance with the terms of the Evidence Act the defendant’s submission is that the plaintiff’s privileged is lost because his conduct is inconsistent with the maintenance of that privilege. Section 122 of the Evidence Act provides:

9. [9]

   For completeness I note two things about parts of the relevant legislation:

   1. (1)

      Section 131A of the Evidence Act extends the application of the relevant part of the Act to preliminary proceedings including where there is a disclosure requirement, which in turn includes an obligation to produce documents under a subpoena; and

   2. (2)

      Part 1C of the Civil Liability Act by s 7D(4) abrogates the provision in s 131(1) of the Evidence Act which otherwise excludes the adducing of evidence of settlement negotiations.

10. [10]

    There is no suggestion that the defendant lacks a legitimate forensic purpose in seeking the documents, nor on my understanding of the issues could there be. In view of the application made by the plaintiff to set aside the deed, there is clearly such a legitimate forensic purpose. Some of the plaintiff’s submissions may have blurred the lines a little between the issue of forensic purpose and the real issue before the Court today which is whether there is an inconsistency between the plaintiff’s conduct and the maintenance of his claim of legal privilege. In any event, as I have said, there was no application to set aside the subpoena based on a lack of legitimate forensic purpose.

11. [11]

    The documents (that is, the legal file) were produced to the Court electronically and have now been placed on a USB stick. I have not reviewed the material on the USB stick, but I was told by Senior Counsel for the plaintiff that he has done so.

12. [12]

    The issue to be resolved next week, that is whether the deed of settlement should be set aside, is governed by the provisions in Pt 1C of the Civil Liability Act. That Part was part of a series of reforms which were protective of, and beneficial to, victims of, in particular, institutional child sexual abuse.

13. [13]

    The supplementary court book included the recent Victorian Court of Appeal decision in Trustees of the Christian Brothers v DZY [2024] VSCA 73, which provides an overview of the statutory amendments in Victoria (footnotes omitted):

14. [14]

    Perhaps more relevantly, the first court book included the judgment of Weinstein J in EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490 (“EXV”), which provides a helpful summary of the legislative reforms in both the NSW context and more broadly across all Australian jurisdictions:

15. [15]

    Before those reforms there were two relevant legal impediments to a plaintiff attempting to bring proceedings for child sexual abuse that occurred many years ago against institutions such as a church or religious order. The first was the limitation period and the second was the so-called “rule in Ellis”. The second of those impediments is a reference to the case of Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 (“Ellis”) in which it was held that such organisations were not incorporated and were not able to be sued as entities as such.

16. [16]

    Part 1C allows for the setting aside of “affected agreements” which for present purposes includes an agreement that was affected by those two legal impediments.

17. [17]

    Section 7C defines that term:

18. [18]

    Section 7D provides the process by which the court may set aside such an agreement and gives a discretion to the court, by the use of the word “may”, to set aside such an agreement. In essence the plaintiff is permitted to commence new proceedings in a court of sufficient jurisdiction (s 7D(1)(a)) and then “apply to the court to set aside the affected agreement”, that is in this case the deed (s 7D(1)(b)). The court may set that agreement aside if it is “just and reasonable to do so”: s 7D(2).

19. [19]

    Section 7D(3) goes on to provide a list of things that the court “may” take into account in making its decision to set aside the affected agreement:

20. [20]

    The last of those considerations or factors, the one in s 7D(3)(d), is one of very wide import, as is the general discretion to be guided by what is “just and reasonable”. I do not accept that s 7D(3)(d) is somehow tied to the three preceding subparagraphs as was submitted by the plaintiff, although based on ordinary principles of statutory construction its content may be informed by the three matters preceding it.

21. [21]

    In considering the issue confronting the Court today, I have taken into account the fact that the amendments to the Civil Liability Act were clearly calculated to benefit people in the plaintiff’s position.

22. [22]

    The intentions of parliament in enacting such reforms can be gleaned from the Second Reading Speech, [1] to which I was directed in Mr O’Neill’s oral submissions and parts of which are extracted in EXV. I have reproduced the relevant portions below:

23. [23]

    The purpose of such reforms was also considered by Weinstein J in EXV at [46]-[48]:

24. [24]

    I should make it clear that I do not accept the extremity of the defendant’s submission when it was put in effect, if not in terms, that in any case when an alleged victim seeks the kind of relief allowed for by s 7D, the plaintiff will be taken to have waived privilege altogether so that a defendant will be permitted to gain access to all privileged communications, documents and advices, etcetera. I reject that proposition, although it does not fall for determination today.

25. [25]

    I might also say that I found Mr Campbell’s suggestion that the plaintiff has yet to decide what parts of his and Mr Parkinson’s affidavit he plans to rely on next week a little, shall I say, convenient for today’s purposes and quite unpersuasive. Whether that submission, which was made during an objection to the material sought to be relied on by the defendant, was pressed, was not entirely clear. In any event, again, it is not necessary to determine whether that would undermine or defeat the defendant’s reliance on the contents of the affidavits or those particular parts of the affidavits, which ultimately were somewhat limited. That is to say, whether or not the material is pressed next week – or whether a forensic choice has been made in that regard – may or may not inform the question of “waiver”, the affidavits having been prepared and filed with the Court, but it is not necessary to decide that question today.

26. [26]

    The plaintiff’s affidavit asserts, amongst other things, that he was guided by his lawyer’s advice as to the risks of litigation including the existence of the limitation period and the rule in Ellis, although I am not sure that he expresses it in those precise terms. The relevant parts of his affidavit, and the only paragraphs read on the motion today aside from [3], are as follows:

27. [27]

    Mr Parkinson’s affidavit said amongst other things in [6]:

28. [28]

    As Senior Counsel for the plaintiff pointed out in his submissions, the question of inconsistency in s 122 of the Evidence Act does not invoke some woolly consideration of general issues of fairness.

29. [29]

    In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 (“GR Capital”), Macfarlan JA (with McCallum JA and Simpson AJA agreeing) considered a number of the authorities on the relevant test at [52]-[55]:

30. [30]

    From those authorities, Macfarlan JA (with McCallum JA and Simpson AJA agreeing) drew the following propositions at [57]:

31. [31]

    In R v Diallo & Ors (No 7) [2024] NSWSC 978 (“Diallo & Ors (No 7)”) I considered the test in some detail, providing an overview of the relevant principles derived from the High Court cases of Osland v The Queen (1998) 187 CLR 315; [1998] HCA 75 and Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66, as well as considering other cases including GR Capital, R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066 and Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36. I will not repeat what was said there – see Diallo & Ors (No 7) at [19]-[30] – except to say that it is the inconsistency of the plaintiff’s conduct, rather than his subjective intention or questions of “fairness at large”, which is determinative.

32. [32]

    Rather than focusing on general considerations of fairness, there must be a more clinical consideration of whether the plaintiff’s conduct, in this instance his reliance on (or filing of) the affidavits to which I have referred, means that he acted in a way that is inconsistent with him maintaining the privilege.

33. [33]

    Without limiting that provision, subs (3) refers to the knowing and voluntary disclosure of the substance of the evidence, or in this case and by reference to s 131A, the documents and/or the advice.

34. [34]

    In this regard, nothing really could be more stark than paragraph [6] of Mr Parkinson’s affidavit in which the plaintiff’s solicitor provides an opinion based on the contents of the very file over which privilege is sought to be maintained.

35. [35]

    It goes on, in [31], to set out particular issues said to be relevant to the bargaining position of the parties:

36. [36]

    I have considered the assertion in the plaintiff’s affidavit in [3] that he does not, by the disclosures that follow, intend to waive legal privilege. However, that statement cannot stand with the balance of the document, or at least those parts read on today’s motion, let alone the contents of Mr Parkinson’s affidavit and especially his expression of an opinion based on the contents of the legal file.

37. [37]

    I am unable to accept the plaintiff’s submission that the issue to be determined next Thursday is concerned with a purely objective appraisal of whether the legal impediments to which I have referred played some role in the settlement and deed entered into by the parties. That is not consistent with the breadth of the terms of s 7D or with the thorough and helpful analysis undertaken by Weinstein J in EXV. Moreover, it is impossible to reconcile with aspects of Mr Parkinson’s affidavit, for example at [31].

38. [38]

    I am satisfied that the privilege over the legal file has been lost pursuant to the provisions in ss 122 and 131A of the Evidence Act.

ORDERS

1. [39]

   I order that:

   1. (1)

      Access to the file produced on subpoena be granted to the defendant and its lawyers.

   2. (2)

      First access be granted to the plaintiff with the expectation that the defendant’s counsel and solicitor be provided access by 4pm Thursday, 14 November 2024.

   3. (3)

      By agreement, the costs of and incidental to the motion will be the costs in the cause.

POSTSCRIPT

1. [40]

   The day after those orders were made, the High Court published its judgment in Bird v DP (a pseudonym) [2024] HCA 41. The parties sought consent orders that the hearing of the set aside motion be vacated, that the plaintiff serve an amended statement of claim before 10 February 2025 and the matter be listed before Garling J on 14 February 2025. Those orders were made in chambers.