IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Institutional Liability List
S ECI 2019 01728

JAMES LENSCAK	Plaintiff	
		
v  		
		
TRUSTEES OF THE MARIST BROTHERS & ORS (according to the attached Schedule)	Defendants	

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JUDGE:	Ierodiaconou AsJ	
WHERE HELD:	Melbourne	
DATE OF HEARING:	13 November 2020	
DATE OF RULING:	17 November 2020	
CASE MAY BE CITED AS:	Lenscak v Trustees of the Marist Brothers (No 1)	
MEDIUM NEUTRAL CITATION:	[2020] VSC 766	

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PRACTICE AND PROCEDURE – Interrogatories – Defendants’ application objecting to two interrogatories – Objection to interrogatory disallowed as oppression not established – Objection to interrogatory allowed as it was too wide – Aspar Autobarn Co-operative Society v Dovala Pty Ltd (1987) 16 FCR 284 – Lynch v Cash Converters Personal Finance Pty Ltd (No 4) [2018] FCA 988 – Supreme Court (General Civil Procedure) Rules 2015 O 30.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J R C Gordon with Ms L Kirwan	Right Side Legal	
			
For the Defendants	Mr J T Rush QC with Mr J Hooper	Colin Biggers & Paisley	

TABLE OF CONTENTS

Summary	1
Background	1
Interrogatory 6	3
Plaintiff’s submissions	4
Defendants’ submissions	7
Applicable principles	7
Analysis	9
Interrogatory 7	11
Plaintiff’s submissions	11
Defendants’ submissions	12
Analysis	12
Conclusion	13

HER HONOUR:
1	This ruling determines a dispute concerning two interrogatories for the examination of the defendants.
Summary
2	The defendants’ objection to interrogatory 6 is disallowed.  The defendants’ objection to interrogatory 7 is allowed.
Background
3	By amended statement of claim (‘ASOC’) it is alleged, amongst other things:
(a)	from 1980 to 1983, the plaintiff was a secondary student at St Paul’s College, Traralgon;
(b)	the first defendant was the owner and operator of the school;
(c)	Brother Douglas Walsh was the school principal during the relevant period;
(d)	the third defendant is the administrator of the estate of Mr Walter Smith, who at the relevant time was the Provincial of the Southern Province;
(e)	the plaintiff was sexually abused by Michael Benedict Tobin, who was known as Brother Aubrey.  He was a Marist Brother and teacher at the school and resided in the Marist Brothers’ residential accommodation on or near the school grounds.  Tobin was the plaintiff’s form 2 maths teacher.  The plaintiff was 12 or 13 years’ old at the time.  It is alleged, amongst other things, that during that time, namely in March – May 1981, Tobin took the plaintiff to the Brothers’ accommodation and sexually abused him there.  The abuse constituted a battery or series of batteries;
(f)	prior to the abuse, Mr Tobin had physically and sexually assaulted many other students;
(g)	for part of the time that the plaintiff was at school, Mr John Speekman was employed as a teacher there.  It is alleged that the plaintiff reported the sexual abuse to Mr Speekman who told him not to tell lies; and
(h)	the plaintiff has suffered psychiatric injury as a consequence of the sexual abuse.
4	By amended defence, the defendants:
(a)	admit that the Marist Brothers and entities responsible for the operation and conduct of St Paul’s College in 1981 were the Southern Province of the Marist Brothers, its Provincial and Provincial Council, and the principal of the school;
(b)	admit that the first defendant is the proper defendant as the nominated entity;
(c)	admit they owed the plaintiff a duty of care to exercise reasonable care for his safety while he was a student at St Paul’s College;
(d)	say that they do not know and therefore cannot admit nor deny the allegations of sexual abuse [and battery] concerning the plaintiff or other students;
(e)	deny that they assigned Tobin a position of authority and power over the plaintiff and that the abuse occurred within the scope of his appointment or employment as a brother and teacher at the school and that they are vicariously liable for the abuse; and
(f)	admit that if the alleged abuse of the plaintiff occurred because of any breach of the duty of care owed to the plaintiff then the first defendant will meet any liability as may be established against any of the Marist Brothers or entities (so defined).
5	The plaintiff filed interrogatories for the examination of the defendants on 17 July 2020.  On 4 September 2020, Peter Carroll deposed to answers on behalf of the defendants.  He is the Provincial of the Marist Brothers.
6	In dispute are the answers to interrogatories 6 and 7.  The parties made oral submissions.  Moreover, the plaintiff helpfully filed an outline of written submissions.
7	The plaintiff relies on affidavits of his solicitor, Laird Macdonald, affirmed on 1, 2 and 18 September 2020 and 11 November 2020.
8	The defendants rely on the affidavit of their solicitor, Alicia Taylor, affirmed on 30 October 2020.
Interrogatory 6
9	Interrogatory 6 is provided below together with the definitions provided in the interrogatories.
NOTE: In the interrogatories;
A.	“Aubrey” refers to Michael Benedict Tobin, who was known as Brother Aubrey;
B.	“St Paul’s”: refers to St Paul’s College Traralgon;
C.	“The Defendant” means any, some or all, of the Provincial of the Southern Province of the Marist Brothers, the Provincial Council of the Southern Province of the Marist Brothers and/or the First Defendant, insofar as each, any or all had any responsibility for the operation and conduct of St Paul’s, or the conduct of teachers at the school, prior to, and in, 1981 and up to 1984;
…
6.	Prior to 1981 had the Defendant received or become aware of any allegation, report or suggestion (and if so stating when, how and how many) that any Marist Brother in the Southern Province had sexually abused, sexually assaulted or engaged in sexual misconduct with, any student at; 
(a) 	any school owned or operated by the Defendant; 
(b) 	St Paul’s?
10	The answer to interrogatory 6 is provided below.
Answer[s] to the Interrogatories are in reference to 1980 – 1981, being the relevant period (relevant period) at the St Paul’s College, Traralgon (the College)
…
6.	In answer to interrogatory 6, I object to answering this interrogatory and its subparts on the grounds that it is too wide, vague, ambiguous and oppressive.  The terms “report” and “suggestion” is not defined and is accordingly too wide, vague and ambiguous.
(i)	In answer to 6(a) I object to answering this interrogatory on the basis that it is oppressive in that there is no proper definition of the time over which this information is sought. It is oppressive to expect the Defendant to review the entirety of their historical archive of an excessively large amount of documents in the context of a small organisation.
(b)	Undercover of that objection, in relation to interrogatory 6(b), between the years 1970 and 1981, I say No.
Plaintiff’s submissions
11	The words of interrogatory 6 are clear and unambiguous.  They have their natural and ordinary meaning and are understandable: Aspar Autobarn Co-operative Society v Dovala Pty Ltd and Australian Dairy v Murray Goulburn Cooperative Ltd.  It is clear what a “report” is and clear that a “suggestion” is something less than a report but something that comes to the attention of any Marist Brother.
12	Moreover, the defendants’ answer in 6(b) shows that they readily understand the interrogatory.  The defendants had no difficulty answering for the period from 1970 to 1981 although they had no mandate to confine answers that way.  The answer to question 6(b) in respect of St Paul’s College is confined to the period between 1970 and 1981, which is not the period about which the interrogatory asked.  The authorities provide that where there is an objection to part of the interrogatory that should be made clear and should not be an objection to answering the whole interrogatory: Aspar Autobarn.  If the interrogatory is somehow oppressive then the facts in Brother Carroll’s response should be clarified and the date should be inserted by the defendants.  The answer is so fundamental to the issue of whether the Marist Brothers knew or ought to have known of the risk of sexual abuse in its schools in the Southern Province that work would need to be done [to answer the interrogatory] even if none had been done before.
13	The defendants’ objection relating to oppression is unsustainable.  Brother Carroll, the deponent of the interrogatory answers, gave evidence given to the Royal Commission into Institutional Responses to Child Sex Abuse that the task of investigating cases of sexual abuse by Marist Brothers has already been done and completed.  Paragraphs 26–8 relate to record-keeping.
The Brothers have engaged in a major record keeping project, which has now consolidated, centralised, ordered, and filed all of the Brothers documentation, much of which has been digitised.
The Province PSO Staff work in collaboration with the Province Archivist to source any historic material which might be required by the Province PSO, and the improvements in record keeping and accessibility make any documents needed readily available for the demands of complaint handling and legal processes.
As a result the Marist Brothers now have a record keeping system which is well organised, digitalised and audited on a regular basis. This process has also enabled the Brothers to audit past records to ensure that matters have been responded to and handled appropriately, and to identify any issues, errors or missing information.
14	It was during the hearing that we were first informed that work on records has not been carried out.  There is no evidence to support the suggestion that what Brother Carroll told the Royal Commission is his statement about record-keeping never transpired.
15	In response to the defendants’ submission that the interrogatory would require record searching across the whole of Australia: the interrogatories are confined to the Southern Province (Victoria / Tasmania).
16	Paragraphs 153–8 of Brother Carroll’s statement to the Royal Commission relate to a Marist Brother Research Project.
In the course of giving evidence in Case Study 43, I advised the Commission that the Marist Brothers were commencing a research project looking into factors relating to the abuse of children by Marist Brothers. Professor Robert Bland, from the Australian Catholic University, has been appointed to carry out the research project. A copy of the terms of reference for the research project is at [CT JH.053.90001.0013].
The Marist Brothers have identified a number of issues that the research will investigate, which include:
(a)	the profile of brothers who sexually abused children and young people;
(b)	the impact of historical formation processes on the psycho-sexual development of brothers;
(c)	the culture within Marist Brothers institutions that allowed the extent of abuse during the 1960s and 1970s to occur;
(d)	the culture within the Religious Institute of the Marist Brothers that allowed the extent of the abuse to occur; and
(e)	other societal and wider Church factors, if any, that may have contributed to child sexual abuse within Marist Brothers institutions.
The research is expected to utilise source material including:
(a)	data prepared for the Commission on brothers who have offended;
(b)	Professional Standards’ files on brothers who have offended;
(c)	materials prepared for Case Studies 4, 13 and 43 of the Commission which have featured Marist Brothers;
(d)	transcripts from the Commission;
(e)	Marist Brothers formation documents;
(f)	interviews with members of the Province PSO team, past and present;
(g)	interviews with people who were involved in Encompass and who have led treatment programs for offending Clergy and Religious;
(h)	interviews with offending Brothers and non-offending Brothers; and
(i)	interviews with survivors (if deemed helpful or appropriate).
To oversee the research project and to ensure that the research meets its objectives the Marist Brothers have set up a Research Advisory Team, which includes:
(a)	the Vice Provincial of the Marist Brothers;
(b)	a brother who is a counsellor and formator;
(c) 	a clinical psychologist and psychotherapist; and
(d)	the Safety and Well Being Officer in the Province PSO.
The Marist Brothers expect to receive the final report of the research project in early 2017.
Although the research is to be undertaken for the Provincial and Provincial Council of the Marist Brothers Australia (Australian Province) it will be shared with other members of the Marist Brothers, including the Marist Brothers General Council in Rome and the leaders of other Marist Brothers’ provinces around the world. The Marist Brothers will consider whether the findings of the research will be made more widely available after the research is completed.
17	The interrogatories relate to paragraphs 20A and 21 of the ASOC which allege that there was a duty of care imposed upon the defendants to prevent harm to the plaintiff, including harm by sexual abuse.  The defendants deny the balance of paragraph 21.  The plaintiff will need to establish Marist Brothers knew or ought to have known of the propensity to sexually abuse children in schools before 1981.
Defendants’ submissions
18	The use of the word “suggestion” is vague to the extent of being embarrassing.
19	The answer to the interrogatory indicates that records have not been digitised and there is a requirement that a small organisation review an excessively large number of documents.  Digitisation commenced and is not finished.  An archivist working part-time died.  It is conceded there is no affidavit evidence regarding this.  The defendants are prepared to provide an affidavit responding to this issue.
20	There is no period of time requested in this interrogatory.  On its face, the interrogatory is extraordinarily overbearing and embarrassing without any confinement of time – do we need to go back to the foundation of the Order in Australia?  It is unreasonable, as indicated in historical archives, which is excessively large – it should be restricted to a more pertinent and reasonable period of time.
Applicable principles
21	Order 30 of the Supreme Court (General Civil Procedure) Rules 2015 is applicable.  Relevant rules follow.
30.06	How interrogatories to be answered
(1)	A party interrogated shall answer each interrogatory specifically by answering the substance of the interrogatory without evasion except insofar as it is objectionable on any of the grounds referred to in Rule 30.07.
(2)	Where the party objects to answer an interrogatory the party shall state briefly—
(a)	the ground of objection; and
(b)	the facts, if any, on which it is based.
30.07	Ground of objection to answer
(1)	A party interrogated shall answer each interrogatory except to the extent that it may be objected to on any of the following grounds—
(a)	the interrogatory does not relate to any question between the party and the interrogating party;
(b)	the interrogatory is unclear or vague or is too wide;
(c)	the interrogatory is oppressive;
(d)	the interrogatory requires the party to express an opinion which the party is not qualified to give;
(e)	privilege.
(2)	Without limiting paragraph (1)(a), an interrogatory that does not relate to any question includes an interrogatory the sole purpose of which is to—
(a)	impeach the credit of the party interrogated;
(b)	enable the interrogating party to ascertain whether the party has a claim or defence other than that which the party has raised in the proceeding;
(c)	enable the interrogating party to ascertain the evidence by which the party interrogated intends to prove the person’s case, including the identity of witnesses.
(3)	A party may not object to answer an interrogatory on the ground that the party cannot answer without going to a place which is not the party’s usual place of residence or business if the interrogating party undertakes to pay the reasonable cost of the person going there, unless the Court otherwise orders.
...
30.09	Failure to answer interrogatories
Where a party interrogated fails to answer the interrogatories within the time limited or does not answer the interrogatories sufficiently, the Court may order that the party answer or answer further, as the case may be, within such time as it directs.
22	The following authority is applicable:
So far as persons interrogated are concerned, it is my view that they also have a responsibility, to the court and to their opponents, to do their best to answer interrogatories in an open and helpful way, not in a clever or grudging way. Thus I believe they and their advisers should not avoid answering a question which is relevant but contains an obvious typing error. If the intention is clear enough, it should be answered – with an appropriate reference to the error. If the nature of the error is not reasonably clear, then of course the interrogatory cannot be answered.
23	In Lynch v Cash Converters Personal Finance Pty Ltd (No 4), after citing Aspar Autobarn, Gleeson J quoted and I adopt:
In Alliance Craton at [36], Mansfield J explained:
In ascertaining whether interrogatories taken as a whole are oppressive, one must consider the number sought to be administered, the extent to which providing an answer imposes an unreasonable and onerous burden on the interrogated party, whether the interrogatory requires the interrogated party to form opinions, to exercise judgment or to draw conclusions, and whether the questions are repetitive: ACCC v ANZ (at [101]). If the energy, effort, time and cost required to address the interrogatories is not reasonably proportionate to the end sought to be achieved, then the interrogatories should not be administered. In making a decision, a balancing exercise must be undertaken: the benefits of narrowing and clarification of issues against the costs and the burden placed over the respondents inherent in the task of answering the written questions fully and accurately.
Analysis
24	This interrogatory asks whether the defendant “received or [had] become aware of any allegation, report or suggestion (and if so stating when, how and how many) that any Marist Brother in the Southern Province had sexually abused, sexually abused, sexually assaulted or engaged in sexual misconduct with, any student…” (emphasis added).  I reject the defendants’ submission that the words “report” and “suggestion” are not defined and accordingly too wide, vague and ambiguous.  The objection is pedantic.  The words must be read in the context of the interrogatory as a whole.  The interrogatory seeks details of the allegations, reports or suggestions: when, how and how many.  When the words “report” and “suggestion” are read in context it is clear that the defendants are being asked whether they were on notice of any sexual abuse or sexual assault or sexual misconduct of students by Marist Brothers.
25	Moreover, as the plaintiff’s submits, the defendants’ answer in 6(b) shows that they readily understand the interrogatory.
26	I reject the defendants’ submission that I ought infer on the face of the interrogatory, being for records “prior to 1981”, that it is oppressive.  Their answer states that it is “oppressive to expect the defendant to review the entirety of their historical archive of an excessively large amount of documents in the context of a small organisation.”  The interrogatory is confined to students at St Paul’s and other schools owned and operated by the first defendant in the Southern Province, being Victoria and Tasmania.  There is no evidence before me of the length of time which the defendant operated such schools prior to 1981, the number of records that need to be searched, the resources that it would take and how it would be burdensome.  The defendants were on notice of this application and provided no evidence to support their oppression objection.  They were also on notice of the date of this ruling and did not provide the affidavit prior to it.  There is no evidence that answering the interrogatory imposes an unreasonable and onerous burden on the defendants.
27	I should add that the defendants have now been given the opportunity to provide affidavit evidence in respect of their record-keeping in light of the plaintiff’s submissions concerning Brother Carroll’s statement (outlined above) to the Royal Commission.  However, they did not rely on such evidence in respect of this objection.  Rather, as discussed above, they relied upon inference.
28	The defendants did not object on the ground of relevance.  That is, that pursuant to r 30.07(1)(a) the interrogatory does not relate to any question between the parties.  If the evidence establishes the abuse occurred, foreseeability will be in issue.
29	The objections to interrogatory 6 are disallowed.
Interrogatory 7
30	The interrogatory and answer are provided below.
7.	Prior to 1981 had the Defendant received or become aware of any allegation, report or suggestion (and if so stating when, how and how many) that any Marist Brother in the Southern Province had been in breach of, or had conducted himself in a way that constituted, or would constitute, a breach of, the Common Rules of the Institute of the Marist Brothers of the Schools (1947) Chapter IV (Chastity) paragraphs 146 to 157 or Chapter IV Relations with the Pupils paragraphs 325 to 343?
…
7.	In answer to interrogatory 7, I object to answering this interrogatory on the grounds the interrogatory is oppressive because it fails to enquire as to a defined period and is too wide.  Further, no definition is provided for the terms “report”, “suggestion” or “had conducted himself” and the Common Rules did not exist within the order after 1967.
(a)	I say further The Common Rules of the Institute of the Marist Brothers (Common Rules) applied from 1947 – 1967. Following Vatican II, all Religious Orders were directed to revise their Constitutions and Statutes. The Common Rules were absorbed into the “Constitutions” of the Marist Brothers of the Schools, Southern Province (the Marist Brothers).  I further state the Constitutions did not adopt the same language as the Common Rules.
Plaintiff’s submissions
31	In response to the objection that the words “report” and “suggestion” and “had conducted himself” are not defined: they are not specialist terms and take their ordinary meaning.
32	In response to the objection that there is no time limit: it is clear in the answer given to the interrogatories that it is the period between 1947 and 1967 when The Common Rules of the Institute of the Marist Brothers (‘Common Rules’) applied.  That is the period of time when any allegation which would represent a breach of these rules is sought, so that is a confined period.  The Common Rules are discovered by the defendants and so therefore conceded to be relevant.
33	The objection that the Common Rules did not apply after 1967 goes nowhere.  What is sought here relates to foreseeability and knowledge that Marist Brothers had conducted themselves at odds with organisation.
34	There is no objection on the basis of oppression in terms of having to review materials to determine whether there had been a report relating to the Common Rules.  The only relevant part of the Common Rules appears to be Chapter IV.  The interrogatories are concerned with Chapter IV paragraphs 146–57 (‘chastity’) and paragraphs 325–43 (‘relations with the pupils’).
Defendants’ submissions
35	Interrogatory 7 is oppressive because of it fails to enquire as to a defined period and is too wide.  It further fails to define “report”, “suggestion” or “had conducted himself”.  The Common Rules did not exist within the order after 1967.  They applied from 1947 – 1967.
36	The interrogatory is too wide.  The extracts of Chapter IV concern matters such as: rule 148: “They shall, in all things observe the strictest modesty…”; rule 149: “They should have a sovereign horror of all conversations, songs, gestures, or attitudes which might wound modesty or be too familiar”; and rule 150: “They shall scrupulously avoid reading dangerous newspapers, magazines or books…”.  The width of the interrogatory is demonstrated by the Common Rules themselves which make answering them well-nigh impossible.
Analysis
37	I allow the defendants’ objection to the width of the interrogatory on the basis that the Chapter IV Common Rules on ‘chastity’ and ‘relations with the pupils’ cover a very wide range of matters.  The question ought to have been confined to Common Rules relevant to the issues in dispute in this proceeding.
38	For completeness, I reject the defendants’ submissions concerning the terms “report” and “suggestion” and “had conducted himself” are too wide because they are undefined.  The analysis above applies: read in context, the words are clear.
Conclusion
39	The objection to interrogatory 6 is disallowed.
40	The objection to interrogatory 7 is allowed.

SCHEDULE OF PARTIES

	S ECI 2019 01728	

BETWEEN:		

JAMES LENSCAK	Plaintiff 	
		
- v -		
		
TRUSTEES OF THE MARIST BROTHERS	First Defendant	
		
JOHN MCMAHON	Second Defendant	
		
PETER CARROLL (as the Administrator Ad Litem of the Estate of WALTER SMITH)	Third Defendant	
		
- and - 		
		
THE SCOUT ASSOCIATION OF AUSTRALIA VICTORIAN BRANCH	Third Party