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Abuse: Redress scheme allegations + discovery / interrogation.


Jagoe v Trustees of the Marist Brothers & Anor [2022] VSC 563 (on JADE),

This interlocutory matter arose in relation to discovery / interrogatories sought by the claimant in relation to information about persons who had claimed to have been sexually abused by a particular person.

The first defendant, having initially provided some information in answers to interrogatories, later removed references to the Redress Scheme allegations in order to comply with the provisions of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth). (the Act).

The Court discussed the issues as follows at [23] – [29].

The first defendant submitted that the Redress Scheme allegations documents it holds constitute information about a person or institution that was either provided to or obtained by an officer of the National Redress Scheme for the purposes of that scheme. The first defendant submitted that this meant the Redress Scheme allegations documents were ‘protected information’ as defined in s 92 of the Act. When asked about how the information in the documents fitted within the other aspects of the definition in s 92, ie is or was held in the records of the Department or the Human Services Department, counsel for the first defendant conceded that the first defendant had not given detailed consideration to this aspect of the definition. Counsel submitted that these departments administered the National Redress Scheme.

There were three issues with the first defendant’s submissions. First, the primary submission that the National Redress Scheme allegations documents were protected information – because they contain information that falls within ss 92(2)(a)(i) or 92(2)(aa)(i) – ignores the structure of both ss 92(2)(a) and 92(2)(aa), which requires that the information falls within both ss 92(2)(a)(i) and 92(2)(a)(ii), or in the case of s 92(2)(aa), within both ss 92(2)(aa)(i) and 92(2)(aa)(ii).

The second issue concerns the first defendant’s suggested interpretation of s 92 of the Act, and in particular how the Court should understand and apply the phrases ‘is or was held in the records of the Department’ and ‘is or was held in the records of the Human Services Department’. The first defendant’s submission was that because the Redress Scheme allegations documents were provided to or obtained by an officer of the National Redress Scheme, the information those documents contained could be deemed to be or have been held by the relevant Department because that Department administers the National Redress Scheme. It appears to me that this construction should not be accepted, because it effectively renders ss 92(2)(a)(ii) and 92(2)(aa)(ii) otiose. Accordingly, it was incumbent on the first defendant to establish that the documents met all aspects of one of the definitions of ‘protected information’ contained in s 92(2) of the Act.

Thirdly, there was simply no evidence before the Court to support the first defendant’s submission that either or both of the Department or the Human Services Department administers or administered the National Redress Scheme, or that the information in the Redress Scheme allegations documents is or was held in the records or one or other of those departments.  

For the reasons given above, I am not satisfied that the first defendant has established that the Redress Scheme allegations documents are ‘protected information’ within the meaning of that term in the Act.

There were two other issues raised by the parties that require brief comment.  The first concerned both parties’ legitimate concerns that the identities of the complainants in the Redress Scheme allegations documents remain confidential.  The plaintiff conceded that it would be appropriate for the first defendant to redact any discovered Redress Scheme allegations documents to ensure the complainants cannot be identified.  

The second issue arose during the first defendant’s oral submissions.  Counsel for the first defendant informed the Court that the first defendant did not consent for the purposes of authorisation, either expressly or impliedly, to the disclosure of what it said was protected information contained in the Redress Scheme allegations documents.  Counsel appeared to invite the Court to provide guidance on the factors an institution might consider in determining whether or not to provide consent.  This case is not a suitable vehicle to consider that issue and it would, in my view, be inappropriate for the Court to engage with counsel’s suggestion in this case.   

[BillMaddensWordpress #2035]



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