The issue of redaction, as part of the discovery process in Victorian institutional abuse cases, is increasingly requiring judicial intervention and significant time and expense are being incurred by all sides, as well as the Court, in resolving such disputes. Given the often historical nature of institutional abuse cases – including evidence extending back many decades – the issue of discovery and redaction is complicated. Coupled with this is that regularly within a defendant's "possession, power and control", there are documents relating to other allegations made by a victim of abuse against an accused perpetrator – issues of privacy for those victims, in particular, are therefore at the fore.
Practitioners' ethical obligations and duties
The starting point is the paramount duty of practitioners to the Court to further the administration of justice in relation to any civil proceeding, including appropriate dispute resolution mechanics 1 and the just, quick, and cheap resolution of the real issues in dispute. One manifestation of this paramount duty is the obligation of practitioners to accurately inform the Court and other parties of the parameters of the case and the factual and legal issues for determination. This is particularly important during the discovery stage of these proceedings.
The starting position when deciding whether to redact or not redact is that prima facie the entirety of the document in question needs to be produced for inspection. 2 Where one decides to redact, the onus will rest upon them to establish an appropriate basis for that redaction.
Determining whether the redaction is necessary or reasonable
A party needs to demonstrate that redacting the document in question is necessary and reasonable. This requires a close consideration of the issues in dispute in the proceeding, the relevance of those documents and the proposed redaction. For example, if the other party already knows the identity of the individual, the reference to whom is redacted, there would likely be little utility in redacting their details again. It would be time consuming and potentially confusing to the other party.
In Levey v Bishop Paul Bernard Bird, 3 then Clayton JR stated:
"In a case where, for example, a firm of solicitors acts for a number of victims of a particular perpetrator and is aware of the identity of the victim and the circumstances of the abuse alleged, there would be little utility in either requiring or undertaking the automatic redaction of those names." 4
Whether redaction is necessary or reasonable will depend on the circumstances of the individual case. 5 Redaction, for example, may be justified in situations where the redacting party is endeavouring to protect the identity of sexual assault complainants, 6 who may for example suffer negative repercussions should their information be released.
In Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc, 7 then Clayton JR noted:
"[D]isclosing the identity of other potential victims would involve a significant breach of the privacy of those persons. I am not satisfied that the imposition of a confidentiality regime at trial is sufficient protection for individuals who may [suffer] "unknowable repercussions from being unexpectedly contacted by the plaintiffs or their lawyers and asked to revisit what is likely to be a traumatic episode in their lives." 8
LENSCAK
Lenscak v Trustees of the Marist Brothers (No 2) 9 (Lenscak) provides helpful guidance as to the complex balancing act which a Court and practitioners must undertake vis-à-vis the duty owed to the Court, the duty owed to clients, and the right of third parties – who are not a party to the proceeding – to privacy and confidentiality. In Lenscak, Ierodiaconou AsJ examined the circumstances where confidentiality and/ or relevance were asserted by the defendant to justify the redactions in question.
Background
In Lenscak, the defendants discovered documents concerning allegations made by the accused perpetrator by other complainants. A point of disagreement centred around the redaction of the names of the other complainants, their family members and contact details.
Where redaction was found to be justified
Relevance example:
It was accepted by the Court that in the instance of the individual "IJ", their personal identity information "ought" to remain redacted. 10 Ierodiaconou AsJ reasoned that the document in question had been received as redacted by the Commonwealth Redress Scheme and that it was an application to that scheme. The plaintiff sought information about the outcome of the application for redress.
Ierodiaconou AsJ found against the plaintiff on this point, concluding that the plaintiff had failed to identify how such information would be relevant to this proceeding. Ierodiaconou AsJ noted further that the application for redress to the "Scheme necessarily postdates its establishment and certainly postdates the allegations of abuse by the complainant here".
Confidentiality example:
Regarding individual "EF", Ierodiaconou AsJ found that EF's personal identity information ought to remain redacted. 11 Her Honour's reasoning included that there was no evidence as to whether or not EF was alive. Documents recently released by the defendants disclosed items such as the name of EF's psychologist. Ierodiaconou AsJ noted that whether or not EF provided consent or would consent to that disclosure was unknown.
Ierodiaconou AsJ also rejected the plaintiff's suggestion that there is an onus on the defendants to contact the other complainants to establish whether or not they consent to disclosure. 12
When redaction was deemed not to be appropriate
Ierodiaconou AsJ found that the personal identity information of the complainants should all remain redacted save for that of "CD". 13 The reasons for this finding:
"CD – Given that the name of CD has been intentionally disclosed by the defendants as a result of communications with CD's widow, and because she requested contact with the plaintiff, there is no reason to maintain the redactions on any of the documents which have been redacted. Of course, whether or not CD's name is disclosed during trial is ultimately a matter for the trial judge." 14
Summary
There is no blanket or uniform approach in respect of proposed redaction and discovery more broadly in historical abuse matters. A close analysis of the pleadings, the issues in dispute, and the nature/substance of the documents in question are all essential. In time, undoubtedly, there will be further jurisprudence which will assist all parties to limit interlocutory applications over discovery and redactions. Defendants need to be mindful of what admissions are made in its defence (including as to whether the abuse itself occurred) as such admissions – where appropriate – can significantly reduce the level of discovery required and accordingly the time consuming process of redacting these documents.
Footnotes
1 Civil Procedure Act 2010 (Vic) s 16.
2 Lenscak v Trustees of the Marist Brothers (No 2) [2021] VSC 49, [54] (Ierodiaconou AsJ).
4 Levey v Bishop Paul Bernard Bird [2020] VSC 615, [36]–[37].
5 Lenscak v Trustees of the Marist Brothers (No 2) [2021] VSC 49, [57].
6 Lenscak v Trustees of the Marist Brothers (No 2) [2021] VSC 49, [57].
7 Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 602.
8 Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 602, [54].
9 [2021] VSC 49.
10 [2021] VSC 49, [60].
11 [2021] VSC 49, [60].
12 [2021] VSC 49, [61].
13 [2021] VSC 49, [59].
14 [2021] VSC 49, [60].
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
