SO v Trustees of the De La Salle Brothers; MP v Trustees of the De La Salle Brothers

This case primarily concerned the scope of the respondent’s obligation to provide information pursuant to s 27(1)(b) Personal Injuries Proceedings Act 2002 in response to questions in relation to two claims by claimants seeking damages for personal injuries claimed to have arisen out of sexual and physical abuse whilst they were residents of a residential school facility for disadvantaged boys run by the respondent. Justice Crow concluded that the respondent was obliged to provide adequate responses to the complainants’ requests for information relevant to allegations made in their Notice of Claim even if those claims would be liable to be struck out if contained in a pleading.

Crow J

22 December 2022

The applicants sought orders under s 35 Personal Injuries Proceedings Act 2002 (“the PIPA”) to obtain proper answers from the respondent in response to questions under s 27 of the PIPA. [1]. The Pt 1 notices of claim each contained a lengthy annexure setting out various allegations some parts of which would be liable to be struck out if presented as a pleading since they were broadly particularised. The answers were required by statutory declaration under s 27(3). The statutory declaration did not set out what enquiries had been made and of whom. The applicants alleged that the respondent had not made lawful responses to several of the requests made of them. In addressing whether the respondent’s answers had been wanting his Honour addressed a series of questions for preliminary determination. [16]–[17].

Justice Crow held:

1. The respondent was obliged to provide information with respect to allegations made in the Notice of Claim even if the relevant allegations would be liable to be struck out if they were included in a court proceeding. [29]. Here, the notice was broadly particularised. [24]. His Honour noted that in SDA v the Corporation of the Synod of the Diocese of Rockhampton [2021] QCA 172; (2021) 8 QR 440, the Court of Appeal held that the obligation to provide information under s 27(1)(b) is not to be construed narrowly, but rather “a broad, remedial construction” is to be preferred. Accordingly, the respondent was required to provide a proper response with respect to the allegations made in the notice;
2. The respondent was obliged to provide information with respect to allegations made in the notice even if those matters exceeded the matters that the applicant needed to prove to make out his cause of action. [73].
3. The respondent was required under s 27(1)(b) of the PIPA to provide information concerning the conduct of its employees or members apart from those specifically identified as perpetrators of acts against the applicant and relating to the conduct of employees or members of the respondent at facilities operated by the respondent other than Boystown Beaudesert. [75]–[76];
4. To the extent that the respondent was obliged to provide information about prior similar incidents, that obligation extended to incidents involving: (a) its employees or members other than those identified as perpetrators of the acts against the applicant and (b) its employees or members at other facilities operated by the respondent. The obligation excluded acts of abuse by employees or members of the respondent different in nature to the allegations of abuse made by the applicant, and (because of a concession) incidents that took place more than 10 years prior to the applicant commencing residence at Boystown Beaudesert. [77]–[78].
5. To comply with s 27(3) of the PIPA, which requires the respondent to verify information provided by the respondent by statutory declaration at the claimant’s request, it is not necessary that the declaration specify from which of the respondent’s officers, employees or agents the respondent made enquiries in answering it (or the enquiries made). [83]. Rather, s 27(3) seeks to minimise formality. [89]–[90].

Importantly, the annexures to one of the applicant’s Notice of Claim, headed “#18 Pleadings and Particulars”, revealed that he intended to include as a part of his case that the respondent had a negligent system that was the product of a systemic pattern. [45]. It was his contention that actual sexual abuse and mistreatment had been ongoing for decades at various institutions run by the respondent throughout Australia. [50]. The nature of his case was that abuse had been allowed, perpetuated and promoted. [56].

In terms of whether the various allegations contained in the annexures headed “#18 Pleadings and Particulars” were liable to be struck out or retained, (on the assumption that this was considered a pleading), his Honour noted that the decision to strike out needs to be made after reviewing the whole of the pleading and having regard to admissions made by the defendant as to its state of knowledge. Here, there was reference made to the Ford Inquiry report. In his Honour’s view, given the broad systems case which had been “plead” by the plaintiff (and given the lack of any pleadings on behalf of the respondent), it was not possible to conclude that broad and historical allegations ought to be struck out. [63]. In his assessment, the allegations relating to:

1. the conduct of employees or members of the respondent other than those listed as perpetrators of acts against the applicant. [64];
2. the conduct of employees and members of the respondent at facilities operated by the respondent other than Boystown Beaudesert. [65];
3. the culture of the respondent in general. [71]; and
4. the culture of the respondent of Boystown Beaudesert. [71],

would not be struck out.

In relation to allegations relating to acts of abuse by employees or members of the respondent which differed in nature to the allegations of abuse made by the applicant, his Honour held that allegations of prior abuse which were neither physical assaults nor sexual assaults ought to be struck out. [66]–[70].

Disposition

Given the preliminary issue as to the construction of s 27(1)(b) was resolved, the further hearing of the application was adjourned.

A Jarro