LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323

LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323

Access to unredacted subpoenaed documents was allowed because the identities and particulars of complainants are relevant for establishing the defendants’ knowledge or duty of care, and any confidentiality can be effectively preserved by suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). The need to enable the plaintiff to litigate her case fairly outweighs confidentiality interests, save that wider publication of complainants' identities remains prohibited.

Parties
Plaintiff/respondent: LG; 1st Defendant: Brian Brock as executor for the estate of the late Leo Clarke; 2nd Defendant/applicant on Motion Filed 7 March 2016: Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle; Applicant on Motion Filed 9 March 2016: Michael Salmon, Director of the Professional Standards Office NSW & ACT
Jurisdiction
Australia
Judgment Date
11 March 2016
Procedural Posture
Civil Proceeding / Determination of Notices of Motion Concerning Access to Documents Produced Under Subpoena
Outcome
Plaintiff and legal advisers granted access to all documents produced under the relevant subpoenas in unredacted form, subject to comprehensive suppression and non-publication orders protecting the identities of complainants, and specific orders as to costs.
Legal Topics
Subpoena, Suppression Order, Confidential Information, Access to Documents, Non Publication Orders
Civil Procedure Subpoena Suppression Order Confidential Information Access to Documents Non Publication Orders

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Parties

LG

Plaintiff/respondent

Brian Brock as executor for the estate of the late Leo Clarke

1st Defendant

Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

2nd Defendant/applicant on Motion Filed 7 March 2016

Michael Salmon, Director of the Professional Standards Office NSW & ACT

Applicant on Motion Filed 9 March 2016

Procedural Posture

Civil Proceeding / Determination of Notices of Motion Concerning Access to Documents Produced Under Subpoena

Legal Issues

  1. 1 Whether the plaintiff and her legal advisers should have access to unredacted documents produced under subpoena by defendants and third party in proceedings concerning allegations of historical sexual abuse.
  2. 2 Whether suppression and non-publication orders are required to protect the confidentiality of complainants named in produced documents.
  3. 3 Whether confidentiality and alleged lack of relevance justify restriction on access to identifying particulars of third party complainants.

Ratio Decidendi

Access to unredacted subpoenaed documents was allowed because the identities and particulars of complainants are relevant for establishing the defendants’ knowledge or duty of care, and any confidentiality can be effectively preserved by suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). The need to enable the plaintiff to litigate her case fairly outweighs confidentiality interests, save that wider publication of complainants' identities remains prohibited.

Court Disposition

Plaintiff and legal advisers granted access to all documents produced under the relevant subpoenas in unredacted form, subject to comprehensive suppression and non-publication orders protecting the identities of complainants, and specific orders as to costs.

Orders

  • Plaintiff and her legal advisers may have access to all documents produced in response to the subpoenas in an un-redacted form.
  • Suppression and non-publication orders made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) to protect the identities of named complainants in documents: (a) non-disclosure outside the parties; (b) use of pseudonyms in all filings; (c) prohibition on publication of identifying particulars.