A ruling by District Court Judge Rosengren in Grealy v State of Queensland has shed light on the balance courts must strike between a plaintiff's right to evidence and the privacy of third parties in historical abuse cases.
In this matter, the plaintiff alleged that he suffered sexual abuse whilst a child at the Brisbane Youth Detention Centre (BYDC). To help prove his claim, his lawyers sought access to previous of notices of claim lodged with the Queensland Government Insurance Fund (QGIF) in relation to other allegations of sexual abuse at the BYDC. On the stand, QGIF representative Mr Dwyer gave evidence that the system held approximately 750 such claims (as at 2022), with many more yet to be finalised.
The State of Queensland objected to the request for disclosure on the basis that it was oppressive, marginally relevant, and risked breaching the privacy of other alleged victims. However, Judge Rosengren rejected most of these objections.
Her Honour said that "a legitimate forensic purpose is established if a document sought raises a line of inquiry relevant to the issues of fact or to an issue of credit". In this case, the documents were relevant to the question of the State's knowledge of systemic abuse - a key issue in establishing vicarious liability or negligence.
The State was ordered to disclose the Part 1 Notices of Claim from those 750 files, limited to allegations of sexual abuse by detention centre staff.
However, privacy concerns were also taken seriously. Her Honour acknowledged that the other claimants "could be unexpectedly contacted by the plaintiff's lawyers and asked to revisit what is likely to be a traumatic episode", and found that full disclosure without redaction would be inappropriate. The court ordered that identifying information - including the names of the claimants and their solicitors - be redacted from the documents before production.
Importantly, the court emphasised that redaction did not undermine the relevance or utility of the documents themselves. The content of the notices, which may assist in proving institutional knowledge or systemic failings, became available to the plaintiff.
This judgment illustrates the careful balancing act involved in disclosure applications in institutional abuse claims - one that weighs the plaintiff's right to make out their case against the equally compelling need to protect the privacy of non-parties. As Rosengren DCJ concluded, "justice weighs in favour of such an order".
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