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[2026] ACTSC 358
Supreme Court of the ACT
2026-09-18
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: AZ v Commonwealth of Australia Citation: [2026] ACTSC 358 Hearing Date: 24 April 2026, 1 May 2026 (submission of additional documents) Decision Date: 18 September 2026 Before: Muller J Decision: See [13] Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – Application for Leave to Disclose and Use Protected Confidences – plaintiff’s application – mandatory considerations – balancing exercise – approximately 4000 pages of material – leave granted Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79, 79A, 79D, 79G, 79H, 79I Cases Cited: CN v ACT [2026] ACTSC 151 Parties: AZ (Plaintiff) Commonwealth of Australia (First Defendant) Victoria Bradley (Second Defendant) Representation: Counsel O Hicks (Plaintiff) L Quilty (First Defendant) No appearance (Second Defendant) Solicitors Ken Cush & Associates (Plaintiff) Maddocks (First Defendant) Rachel Bird & Co (Second Defendant) File Number: SC 504 of 2025 MULLER J:
AZ was detained at Quamby youth detention centre, a facility then run by the Commonwealth Government, for various periods between the ages of approximately 13 years and 15 years. He says in that period, and in the period of approximately two years following his release from that facility, he was the victim of physical, sexual and emotional abuse by a person employed at the facility and responsible for his supervision. He asserts physical and psychological injuries as a consequence of the abuse.
AZ sues the Commonwealth and the individual officer. He seeks damages for injury. As against the Commonwealth his claim is founded in negligence, or alternatively on the basis of its vicarious liability for the actions of the custodial officer, or alternatively the non-delegable duty it owed to AZ.
I previously made orders on a retroactive basis pursuant to s 79D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) to have access to various records forming exhibits SAS-1and SAS-2 in the affidavit of Sangeeta Sharmin affirmed on 13 March 2026. I also gave leave for an additional document prepared by the solicitor for the Commonwealth to be filed, in the nature of additional submissions concerning protected confidences evidence. I indicated I would then undertake a preliminary examination of the documents pursuant to s 79G of the EMP Act.
The records under consideration comprise approximately 4,000 pages. I have now undertaken that examination.
Is leave required to inspect and disclose the records?
The records I have examined are those produced by Australian Capital Territory Mental Health, Justice Health and Alcohol and Drug Services and those produced by Australian Capital Territory Corrective Services. They are replete with protected confidence evidence. It is noteworthy pursuant to s 79A of the EMP Act a protected confidence is any “counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed”. In these proceedings, AZ alleges he was the victim of a sexual offence. As such counselling communications made by, to or about him are caught by the scheme. That is so whether or not the communication makes reference to the sexual offence alleged. All that is required is to establish there is a counselling communication made by, to or about the person. A communication will be a counselling communication within the meaning of the EMP Act if it is made in circumstances giving “rise to a reasonable expectation of confidentiality or a duty of confidentiality,” and it is made: (a) by the counselled person to a counsellor in the context of a counselling relationship; (b) to, or about the counselled person in the same context; (c) to a third party in the same context; (d) by a third party in the same context; or (e) by a counsellor to another counsellor for the counselled person, or vice versa.
A counsellor is defined in s 79 of the EMP Act as a person who: (a) has undertaken training or study, or has experience, relevant to the process of counselling people who have suffered harm; or (b) is supervised by someone to whom paragraph (a) applies.
With reference to its breadth, there should be no surprise in finding the subject records contain a multitude of communications caught by the definition. As a consequence, s 79D of the EMP Act mandates the evidence is not to be disclosed unless the court dealing with the proceeding gives leave.
Weighing the public interest considerations
Disclosure of protected confidence evidence in civil proceedings is limited to those cases where the court gives leave, having satisfied itself the requirements of s 79H of the EMP Act are met: 79H Giving of leave to disclose protected confidence … (3) In making a decision under subsection (1), the court must have regard to— … (b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and (c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and (d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and (e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and (f) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and (g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and (h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made. …
In a civil proceeding the critical issue after considering all of the matters to which regard must be had and any other matters considered relevant – noting the list in s 79H of the EMP Act is not expressed to be exhaustive – is whether the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence.
Applying the mandatory criteria and other relevant criteria in this case I note: (a) AZ seeks damages, principally for psychological injury, consequent upon alleged abuse suffered by him as a teenager. In bringing his claim he ought reasonably to have understood his medical history before and after the events of which he complains was likely to be a matter of relevance in addressing his claim. With that in mind he consents to the disclosure of the evidence. (b) The evidence itself deals extensively with AZ’s mental health history including numerous point-in-time assessments and is likely to be relevant in assessing issues such as symptom onset, causation, the impact of his psychological condition and treatment options. As such it is likely to have a substantial probative value to facts in issue in the proceedings. (c) There is no evidence before me to suggest evidence of similar probative value is available from sources not containing protected confidence evidence. (d) For the reasons set out above the material is likely to affect the outcome of the case. (e) There is an overriding importance in the protection of confidentiality of relevant disclosures so as not to discourage victims from seeking out and receiving effective counselling or treatment. (f) The records in this case are extensive and cover an extended period of time during which, at particular points, AZ’s mental health status is plotted quite closely. That factor weighs heavily in favour of disclosure.
For the reasons set out above I am satisfied the public interest in ensuring the proceedings are conducted fairly by permitting the use and disclosure of the records outweighs the public interest in preserving their confidentiality.
As I observed in CN v ACT [2026] ACTSC 151 at [10] the issue of leave to rely on the disclosed documents for the purpose of hearing is a matter more appropriately addressed by the trial judge. In addition, orders are sought concerning the giving of evidence by the plaintiff and expert witnesses at trial and I consider these also to be matters for the trial judge.
Orders
I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 18 September 2026
AZ
Commonwealth of Australia
[2026] ACTSC 151