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In this significant case, Crow J addressed the respondent’s obligation to disclose information under s 27(1)(b) Personal Injuries Proceedings Act 2002. Notably, this case constitutes the first judicial consideration of whether the “circumstances of” and the “reasons for” an incident for the purposes of s 27(1)(b) refer to different classes of information. Ultimately, his Honour found that they did, and set down the test for whether information was about the “reasons for” an incident.
19 August 2020
The applicant, SDA, was a resident of an orphanage in Rockhampton managed by the first respondent. –. He alleges that during his time at the orphanage between 1973 and 1980, he was subjected to sexual and physical abuse. . He alleges that this abuse was perpetrated by the orphanage’s superintendent, Reverend M, Father P and older residents of the orphanage. .
SDA brought proceedings against the first respondent in accordance with the Personal Injuries Proceedings Act 2002 (PIPA). . SDA’s solicitor made a request to the first respondent for documents and information pursuant to ss 27(1)(a) and 27(1)(b) of the PIPA. . Dissatisfied with the response, SDA brought an application seeking further disclosure. . Crow J was satisfied that three of the five questions posed in the request had been provided to SDA. . However, there remained a question as to whether SDA was “entitled to an order pursuant to s 27(1)(b) of the PIPA requiring the first defendant to provide”:
“ … all information about a report, complaint, warning, concern or investigation regarding any act of sexual or physical abuse on a child committed or alleged to have been committed by [Reverend M] at St George’s Home for Children, Rockhampton, Queensland, between 18 December 1963 and 10 January 1975.” .
The focus of the application lay on s 27(1)(b)(i), which provides:
“27 Duty of respondent to give documents and information to claimant
(1) A respondent must give a claimant—
(b) if asked by the claimant—
(i) information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident;”
Having regard to Haug v Jupiters Ltd  1 Qd R 276, Crow J found that s 27(1)(b)(i) refers to “the incident”, as opposed to “the claim”, which is the subject of s 27(1)(a). . Significantly, “incident” is defined in the Schedule Dictionary to the PIPA as “the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury”. –. The use of this defined term, rather than “claim” in s 27(1)(b) therefore has “the effect … of limiting the categories of material that must be disclosed and produced”. . Following from this, his Honour considered that Haug “authoritatively decided” that “circumstances of… the accident” should be interpreted to “encompass all events which appertain to or are causes of the accident”. .
Crow J noted that there had been no “express declaration in case law” as to the meaning of “the reasons for, the incident” and whether it confers a different obligation to provide information. . Although the dictionary definitions of “reason” and “circumstance” “do not significantly differ”, an intention that they should take on different meanings should be inferred from the use of both terms in s 27(1)(b). .
Turning then to what would constitute a “reason” for an incident, Crow J found that it was appropriate to consider that the “reason” is “a strand in the rope of causation”, rather than an indispensable link in the chain of causation. . This was because his Honour was obliged to give s 27 of the PIPA “a broad, remedial construction”. . However, as s 27(1)(b) is essentially focussed on causation, “[i]nformation can be obtained about what the respondent did or did not do, but not about what the respondent ought to have done”. . In his Honour’s view the Parliament’s “use of the narrower phrase ‘the incident’ in s 27(1)(b)(i) leads to the conclusion that the respondent is not obliged to provide information in response to a request under s 27(1)(b)(i) which relates to prior similar incidents, unless it can be demonstrated that the prior incidents have causative effect, in the sense of being a strand in the rope of causation”. .
In the event, Crow J found that complaints against Reverend M had not been received by the first respondent until 1999, 25 years after the conduct alleged by SDA. . As this information could not “have had any bearing on what the first respondent did or did not do at the time of the incident” or put it on notice of the risk, the requested information had an insufficient causative link to the conduct alleged to be disclosable under s 27(1)(b). . Accordingly, his Honour dismissed the application. .