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1. On 16 March 2024, the plaintiff, an Aboriginal man, was arrested at a hotel in Gungahlin in the ACT. Three police officers, who are the second, third and fourth defendants in this proceeding, admit to attending the hotel and to arresting the plaintiff, although there is contention about some of the circumstances of the arrest.

2. The plaintiff was then transported to the ACT Police Watch House in the caged section of a police vehicle. In relation to the period up until his arrival at the Watch House, the plaintiff contends that, as a consequence of the officers’ handling of him and failure to inform him why he was under arrest, he was: (a) Unlawfully arrested; (b) Falsely imprisoned; (c) Assaulted; and (d) Battered.

3. The alleged failure to inform the plaintiff of the reason for his arrest and detention is disputed. The circumstances of the arrest and conveyance as described by the plaintiff raise the prospect of a physical injury component to the claim, although none is presently pleaded.

4. From shortly after the time of the plaintiff’s conveyance to the ACT Watch House, the involvement of the second defendant ceased. The fifth defendant is the custody sergeant at the Watch House and is separately represented in the proceeding. The first defendant is the Commonwealth and is sued in its capacity as the body vicariously responsible for the alleged tortious acts of the other named defendants, who were all serving members of the Australian Federal Police at the material time.

5. Following his detention at the Watch House, the plaintiff asserts that he was unlawfully stripped naked in the presence of a number of police officers, including by admission, the third, fourth and fifth defendants, together with two other serving officers, including a female officer. The subject events are captured on CCTV footage. The first to fourth defendants admit that the strip search was without lawful justification, because it had not been approved by a police officer of the rank of superintendent or higher, and because it was conducted in the presence or view of a female officer. The fifth defendant denies the allegation of unlawful conduct.

6. The plaintiff contends that in the circumstances: (a) He was falsely imprisoned by virtue of his arrest and detention without having been told the reason for his arrest and detention. (b) He was subject to a battery in respect of: (i) Any contact with him prior to his having been told why he was under arrest; (ii) Physical contact with him that was in excess of that which was reasonable; and (iii) His having been stripped naked in the presence of a female officer without lawful justification. (c) He suffered an assault as a consequence of justifiable fear of the imminent application of unlawful physical force to his person by serving police officers.

7. The statement of claim in its present form limits the particulars of damage to loss of liberty, hurt, indignity and the psychological consequences of the events described. There is no further particularisation of a physical injury.

8. The first to fourth defendants filed an application dated 28 July 2025, seeking a series of orders related to gaining access to and using medical records from Katungul Aboriginal Corporation Regional Health and Community Services (Katungul). In usual circumstances, access to such records would be procured without the court's active intervention by issuing a notice for non-party production to the nominated medical service provider.

9. In this instance, due to a concern that the records may contain confidential counselling materials relating to allegations of sexual assault or family violence within the meaning of Div 4.4.3 of Ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act), the defendants elected to proceed by way of application, asking for the court’s leave to seek and, where appropriate, make use of the records. That concern itself arose out of the plaintiff’s service of an expert medical opinion in the form of a report of Dr Peter Klug, a forensic psychiatrist, dated 26 March 2025, in which the doctor referred to the plaintiff’s history of child sexual abuse.

10. At the hearing of the application before me, the defendants limited the order in respect of which leave was sought to the following: (a) Require Katungul Aboriginal Corporation Regional Health and Community Services to produce documents falling within the category of documents contained within the draft subpoena to Katungul Aboriginal Corporation Regional Health and Community Services appearing as Annexure MM-3 to the affidavit of Melanie McKean, or such other category of documents as determined by the Court.

11. Notwithstanding that limitation, the application was opposed by the plaintiff. I had the benefit of written and oral submissions from each of the plaintiff and the first to fourth defendants. The fifth defendant was represented at the application hearing and did not oppose the application.

The protected confidences legislation

12. In Smith (a pseudonym) v Australian Capital Territory [2025] ACTSC 345, I set out the relevant background at [5]-[6] as follows: 5. In the ACT, as in other Australian jurisdictions, legislation has been enacted that provides a public interest immunity against disclosure of confidential counselling material relating to allegations of sexual assault or family violence. The relevant provisions are contained in Div 4.4.3 of Ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act). Relevantly for these purposes, there is a requirement for leave of the court before a party can seek orders compelling the production of a document that records a protected confidence within the meaning of the Act. 6. The legislation is framed in such a way as to require leave to be sought at three stages of the disclosure process. In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 at [17]-[25], McCallum CJ identified the stages as: (a) Leave to compel production of protected confidences to the court: ss 79D(3)(a) and 79F. (b) Leave to inspect and make use of the protected confidences after preliminary examination by the court: s 79H. (c) Leave to adduce evidence of or to tender the protected confidence in the proceedings: s 79D(3)(b).

13. A protected confidence is a counselling communication and is defined in quite broad terms in s 79A as follows: 79A Meaning of protected confidence—div 4.4.3 (1) For this division, a protected confidence is a 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 (the counselled person). (2) A counselling communication is a protected confidence even if–– (a) it is made before the happening, or alleged happening, of the acts constituting the sexual offence or family violence offence; or (b) it is not made in relation to–– (i) the sexual offence or any sexual offence; or (ii) a condition arising from the sexual offence or any sexual offence; or (iii) the family violence offence or any family violence offence; or (iv) a condition arising from the family violence offence or any family violence offence. (3) For this section, a counselling communication is a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality— (a) by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (b) to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (c) by the counselled person to a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (d) to the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (e) about the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor to— (i) the counselled person; or (ii) the counsellor; or (iii) another third party to whom subsection (4) applies; or (f) about the counselled person by a counsellor to someone else who has also been a counsellor for the counselled person; or (g) about the counselled person to a counsellor by someone else who has also been a counsellor for the counselled person.

14. The definition is sufficiently broad to prospectively cover any medical treatment records that contain a counselling communication, brought into existence at any time where the subject of the counselling communication is a person against whom a sexual offence or family violence offence was or is alleged to have been committed, subject to there being an involvement of a person who meets the definition of a counsellor in that communication process, in accordance with s 79A(3). “Counsellor” is defined in s 79 as: counsellor means 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.

15. As Mossop J observed in R v Chute (No 5) [2019] ACTSC 52 (Chute (No 5)) at [17], it is likely that most of the records brought into existence by a psychiatrist, where the records relate to a “counselled person,” will be caught by the definition.

16. Given the limited scope of the application as it was presented at hearing, the court is asked to deal only with the first stage of the process, where there is yet to be any relevant disclosure of medical records. Sections 79D(3)(a) and 79F have application at that stage and they provide: 79D General immunity for protected confidences (1) This section applies in relation to a proceeding. (2) A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure. (3) Without limiting subsection (2)–– (a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; and (b) protected confidence evidence is not admissible in the proceeding, unless the court gives leave. Example––par (a) A person could not be required to disclose a protected confidence in response to a request for production of documents in a proceeding unless the court gives leave.

79F Threshold test––legitimate forensic purpose (1) The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave. (2) To establish a legitimate forensic purpose, the applicant must— (a) identify a legitimate forensic purpose for seeking the leave; and (b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding. (3) If the applicant is required to give notice of the application under section 79E, the court must not decide whether or not to refuse the application under this section until at least 14 days after the applicant has given the notice. (4) However, the court may make a decision in a shorter period after the notice has been given if satisfied it is in the interests of justice. (5) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.

17. Section 79D(3)(a) prevents a person from being required, whether by subpoena or otherwise, to produce a document recording a protected confidence without the court’s leave. A failure to seek such leave will render the subject evidence inadmissible in the proceeding. Section 79 then sets out the threshold test for the granting of leave. The test requires the applicant party to establish a legitimate forensic purpose for the seeking of leave. That test itself is in two parts. It requires first, the identification of a legitimate forensic purpose, and secondly, the demonstration of an arguable case that the subject evidence would “materially assist” the applicant’s case in the proceeding.

18. The threshold test presents some difficulties in a situation such as this case where the applicant presently has no knowledge as to the content of the material that may be produced. Indeed, it cannot be put higher than that there is at least a prospect that the records of the particular medical service provider contain communications that will be caught by the legislative scheme. In dealing with what he described as the “tension that exists within s 79F(2)(b)” in Chute (No 5) at [5]-[7], Mossop J referred to the decision of the NSW Court of Appeal in KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172: 5. The concept of legitimate forensic purpose is well-established. So far as (b) is concerned the legislative formulation requires that there be established at this stage an “arguable case” that the evidence in relation to which leave is sought “would materially assist” the applicant’s case in the proceedings. 6. In KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172, Basten JA said (at [31]-[32]) when dealing with similar New South Wales provisions: 31. Under the general requirements in relation to a subpoena or a notice to produce, it is not necessary that the moving party demonstrate that the material sought will be admissible in evidence; the accepted test of a “legitimate forensic purpose” is undoubtedly broader than that. An accused may well seek access to documents in order to formulate lines of cross-examination, either by suggesting that the applicant has made inconsistent statements to a counsellor in relation to the circumstances of the offence, or by using material in the medical records to suggest that the evidence of the applicant may be unreliable. It may be possible to formulate a line of cross-examination without seeking to admit into evidence the document or the information contained in the document. 32. It follows that the first limb, requiring that the court be satisfied that the document or evidence “have substantial probative value”, before allowing the accused access to it, will constitute a significant reduction in the material which might be made available to the accused under the general law with respect to access to material on subpoena or through a notice to produce (or, indeed, a call for a document in the course of proceedings). This reduction is the result of the inclusion in s 299D(1) of paragraph (a). 7. The same comment as made by Basten JA at [32] may be made about the operation of s 79F(2). It should be noted that the test in s 79F(2)(b) combines the concept of “an arguable case” with the expression “would materially assist”. Having regard to the fact that the applicant will necessarily not have access to the documents, it may be that in the absence of evidence about the content of the documents it is difficult to establish an arguable case that the evidence “would” materially assist the applicant’s case. Having regard to the late stage of the proceedings at which the present application was made and the limited argument made by the parties, this case is not a suitable vehicle in which to examine the tension that exists within s 79F(2)(b).

19. In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210 (Stanley), after referring with approval to the analysis at [9]-[19] in the decision of Mossop J in R v Chute [2019] ACTSC 197; 14 ACTLR 140, McCallum CJ stated at [20]- [21]: 20. The difficulty in interpreting the threshold test in s 79F in that context has been considered in a number of decisions of this Court, helpfully gathered and analysed in the decision of Mossop J in R v Chute [2019] ACTSC 197 at [9]-[19]. For the reasons his Honour there gave, the question of leave to issue a subpoena compelling the production of a protected confidence should be determined on the basis that an “arguable case” means “a reasonable possibility in light of the known facts” and does not require at the threshold stage the establishment of the facts that provide the material assistance: at [19]. 21. That approach has the virtue of being coherent with the common law as to the grounds on which any subpoena may be set aside. In circumstances where the party that sought the issue of a subpoena cannot know the contents of the documents sought, it is enough to establish apparent relevance: “it will not be fishing, manifesting an illegitimate forensic purpose, to seek to subpoena apparently relevant documents for the purposes of cross-examining an important witness, even if the subpoenaing party does not know whether those documents will assist or advance its case”: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [40] (Bell P, with whom I agreed at [98]).

20. Her Honour went on to observe that “materially assisting” the applicant’s case should not be confined to establishing that the evidence may impugn the credit of a witness who claims to have been the victim of sexual assault or family violence. On the contrary, a party may be equally assisted by learning from the production of documents that there is material that is entirely supportive of the case that the claimant makes. That assistance may be in the form of furthering the early resolution of the disputed claim.

21. As McWilliam J noted in Hall (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113 at [15], in a number of other jurisdictions including NSW, civil proceedings such as this case have been excluded from the operation of the statutory regime directed to protecting confidential communications concerning victims of sexual assault or family violence. Her Honour observed at [18]-[20]: 18. Insofar as the above legislative regime applies to civil proceedings of the kind presently before the court, it appears to be in direct contradiction of the statutory obligations contained in the pre-trial procedures prescribed by Part 5.3 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act). Before any civil proceedings seeking damages for personal injury may be commenced, upon request, the plaintiff is required to provide her medical and treatment records. These records include her psychological counselling and other treatment records: s 64 of the CLW Act. 19. Such requirements are with a view to reducing the litigation before the courts. Under s 61 of the CLW Act, the respondent must attempt to resolve the claim. In order to do that, it must be able to put itself in a position to assess the claim. 20. As the plaintiff’s counsel in the present case submitted, as soon as personal injury litigation commences, the parties must approach the court for leave under the EMP Act to disclose the very information that could have been requested and provided as part of the pre-trial disclosures required by the CLW Act. The evidence

22. The first to fourth defendants read the affidavit of Melanie McKean, solicitor for the first to fourth defendants, affirmed on 25 July 2025. Ms McKean attested to the fact that the report of Dr Klug had referred to the plaintiff receiving treatment from a general practitioner in Batemans Bay, Dr Christine Woolgar, who Ms McKean believes provides medical services under the banner of Katungul. The report of Dr Klug is annexed to Ms McKean’s affidavit.

23. In addition, Ms McKean annexed the records of Services Australia, which identified that the plaintiff had consulted Dr Shilpa Dahal on 15 October 2024 regarding preparation of a general practitioner mental health treatment plan. Investigations had established that Dr Dahal was also practising under the banner of Katungul.

24. The concern in respect of the subject records potentially containing protected confidences arose from the report of Dr Klug.

Dr Klug’s report

25. Dr Klug is a forensic psychiatrist practising from rooms on Macquarie St, Sydney. He interviewed the plaintiff on 21 January 2025 for the purpose of preparing an expert witness report in respect of these proceedings. His report is dated 26 March 2025. He had access to the body-worn video footage and CCTV footage of the events described by the plaintiff in his statement of claim. Unusually, Dr Klug did not record the history of the relevant events that he received from the plaintiff. However, having reviewed the video footage, he stated that the “account of the horrific nature of his arrest and incarceration is compatible with this video footage”. Dr Klug recorded the following psychiatric symptomology: (a) Marked social withdrawal. (b) A generally raised level of anxiety. (c) Panic based symptomatology. (d) Episodic preoccupation with the relevant events. (e) Intense flashback experiences to aspects of the events. (f) Persistent insomnia. (g) Recurrent nightmares. (h) A range of phobic anxieties, including exposure to public places, contact with police and the city of Canberra. (i) Hyper vigilance with respect to potential threats, particularly concerning police. (j) Intermittent depressed mood. (k) Increased alcohol consumption (currently consuming approximately nine to eighteen standard drinks per day with an observed increase after the subject events).

26. The plaintiff disclosed to Dr Klug a long-term history of drug use commencing in his teenage years. He told the doctor that since the episode in March 2024, he had continued under the care of his general practitioner, Dr Woolgar. He was seeing no other health professionals. The plaintiff disclosed “[one] Zoom appointment with a mental health person” following the March 2024 events, resulting in the prescription of medication. Since then, he had remained on the antidepressant sertraline on a dose of 100 milligrams daily. The plaintiff observed that the medication had been of some assistance, but it was not always helpful. He also disclosed a prior prescription of anti-depressant medication approximately three or four years ago and prior to his father's death, in the context of his father's increasing illness at the time. The plaintiff asserted that he was on the medication for about a year before ceasing, and disclosed that it was helpful and made him less irritable.

27. The plaintiff also made a disclosure about a history of childhood sexual abuse by his cousin occurring when he was aged about seven or eight years. In response to an inquiry from Dr Klug as to the effect of the child sexual abuse on him, he said, “I've been fairly badly affected – I hid it until I told my mum and dad about three years ago”. The plaintiff described difficulties with sexual intimacy, talking to females and general shyness, observing that his shyness had been worse since March 2024. Dr Klug stated, “[the plaintiff] remains preoccupied with the sexual abuse as a child and is aware of trying to suppress thoughts about it. He worries about seeing his cousin incidentally in Batemans Bay.” Dr Klug concluded: He remained preoccupied with: the relevant events of March 2024; his sexual abuse by a cousin; his current symptoms; his level of dysfunction; and fearfulness about police.

28. Relevantly, in respect of the plaintiff’s alcohol consumption, Dr Klug recorded: His alcohol consumption increased since these relevant events and he currently drinks to a hazardous level. His drinking had escalated from the time of his father's death in 2022 (prior to the arrest by the AFP) but had already diminished by the time of his arrest. It escalated again from the time of those events.

29. Dr Klug went on to diagnose the plaintiff with a chronic post-traumatic stress disorder in partial remission; a persistent depressive disorder with anxiety; a secondary exacerbation of pre-existing alcohol use disorder; and a chronic cannabis use disorder. In relation to the diagnosed persistent depressive disorder, he noted that it represented: … a combination of a chronic major depressive disorder and a dysthymic disorder. A dysthymic disorder is a chronic low grade depressive illness which is nevertheless categorised as a major mood disorder, often stemming from childhood or adolescence and predisposes the sufferer to a chronic major depressive disorder. A chronic major depressive disorder is a major mood disturbance which bears a high statistical relationship to increased levels of morbidity and mortality by suicide.

30. The doctor concluded: In my opinion, [the plaintiff] suffered from a likely chronic post-traumatic stress disorder and possibly also a persistent depressive disorder from the time of his abuse by a cousin in his childhood. These conditions probably ameliorated over time but were markedly exacerbated by the events of March 2024 when he was arrested by the AFP. Consequently, his exacerbated current psychiatric conditions have been substantially caused by the circumstances of his arrest in March 2024 but are also due to his experiences of childhood sexual abuse. The nature of the arrest and the particular fact that he was restrained and stripped naked acted as an intense reminder of his abuse as a child.

31. Dr Klug went on to observe that the plaintiff was suffering from persistent impaired function, including in relation to employment, and made recommendations for intensive psychiatric treatment and ongoing medication.

The first to fourth defendants’ submissions

32. The first to fourth defendants emphasised that the report of Dr Klug and the disclosure of childhood abuse referred to therein had done no more than raise the chance that there may be protected confidences in the material to be produced by the nominated health provider. The defendants emphasised that such material was not the target of their inquiry, asserting that there was otherwise a legitimate forensic purpose in seeking access to the records. They submitted that the bar to be reached in respect of the first limb of the test under consideration was not a high one.

33. As to the breadth of the subpoena, the defendants conceded that no date range had been included because the duration of the plaintiff’s treatment at the centre was unknown. In terms of imaging results, there was a concession that such records may constitute too broad an inquiry in the context of a mental health claim, but invited the Court to narrow the scope of the subpoena schedule if that was considered appropriate.

34. The defendants dealt with the issue of legitimate forensic purpose in their written submissions. It was submitted that the plaintiff, by his amended statement of claim, had put in issue whether he had suffered harm in the form of a psychiatric injury as a result of the subject events at the Watch House, or by way of exacerbation of a pre-existing psychiatric injury. The existence of a pre-existing psychiatric condition was therefore a relevant matter. The defendants submitted that the evidence sought under subpoena is likely to be relevant to causation and the assessment of damages as it may contain evidence of: (a) The plaintiff’s mental health symptoms prior to the incident subject of the claim, including the effect the symptoms had on his level of function; and (b) The plaintiff’s mental health symptoms after the incident subject of the claim, including the effect the symptoms had on his level of function.

The plaintiff’s submissions

35. The submissions of the plaintiff were cast at a broader level than was ultimately necessary, on the basis that he was anticipating the defendants would move on each of the three proposed orders set out in the application in proceeding.

36. The first matter raised by the plaintiff was that of standing. The plaintiff contended that the obligation imposed on the court in light of s 79H(3)(g), to take into account the position of the counsellor, was such that the counsellor ought not be denied standing in relation to the first limb of the test. The plaintiff acknowledged that the right of the counsellor to be heard only arose at a later stage in the process, after the court had conducted a preliminary examination of the material, but contended that a generous view of standing should be taken; such that the counsellor would not be denied standing if they sought to be heard. On that basis, it was suggested that the counsellor should be notified of the application.

37. As to the substance of the application in the narrower form in which it proceeded, the plaintiff contended: (a) The draft subpoena should be characterised as overly broad and set aside on that basis alone, given the absence of a date range: see DPP v Franklin (No 1) [2023] ACTSC 451. (b) The inquiry in s 79F(2) is a two-stage inquiry. The second limb of that test requires the applicant to satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought will materially assist the applicant’s case. Something more than establishing apparent relevance is required. (c) The EMP Act makes clear that a subpoena for a protected confidence is subject to a more demanding test, even at the stage of issue, than that which is applicable to an ordinary subpoena: see Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown City Council) at [80]. Relying on that authority, the applicant must satisfy the court of an arguable case that the protected confidences would “materially assist” the applicant’s case. That the protected confidences “might assist” is not sufficient. (d) The prospect of relevance to an issue in the proceedings does not confront the second limb of the statutory threshold in s 79F(2). (e) The task of obtaining expert evidence from a psychiatrist, whilst a legitimate endeavour, does not amount to a basis on which to conclude the protected confidences would materially assist the applicant’s case. The first to fourth defendants advanced no expert evidence supportive of the proposition that the expert would be assisted by such material, and there is no evidence that the defendants have, at this stage, engaged an expert at all.

38. The plaintiff submitted that, to the extent that the decision of McCallum CJ in Stanley, at [23], identifies s 79 as containing a single or a unitary test of legitimate forensic purpose, the decision should be regarded as incorrect.

The issue of standing

39. The attitude of the counsellor to the disclosure of protected confidence material in respect of which they have had some involvement is a mandatory consideration for the court at the time of making a determination whether, having conducted a preliminary examination of the material, it is appropriate to give leave for its disclosure. I accept the submission of the plaintiff that there may be circumstances in which a court will consider it appropriate to ascertain the position of the counsellor towards disclosure of protected confidence material at an earlier stage of the process. However, I do not consider those circumstances to arise here. That is because it is simply not possible to determine on the basis of the material presently before the court whether the subpoena will result in the disclosure of a protected confidence. There is insufficient material available to permit even a determination of whether the medical treatment providers with whom the plaintiff has engaged at Katungul will meet the definition of a counsellor for the purposes of the EMP Act.

40. I therefore do not accept that in this instance, the factual circumstances are such as to warrant the medical service provider being placed on notice of the application before it is determined.

The scope of the draft subpoena

41. The draft subpoena seeks the following records: (a) Clinical notes; (b) Correspondence concerning medical advice or treatment; (c) Referrals; (d) Reports; (e) Imaging; (f) Pathology results; and (g) Treatment plans.

42. In view of the plaintiff’s claim as presently pleaded being limited to psychological injury only, it is difficult to see that there could be any relevance in securing records relating to imaging or pathology results. The defendants have not established that a subpoena seeking access to such records has a bona fide purpose, and it will be necessary for the scope of any subpoena issued with leave to be limited accordingly.

43. I am satisfied that it is appropriate to include the imposition of a time limitation on the request for production, on the basis that the history received by Dr Klug, and the opinion he formed as to diagnosis based on that history, indicates that only those medical records created after the plaintiff was aged seven or eight years have any prospective relevance; that being from 1994 onwards.

The test in s 79F(2)

44. The decision of the NSW Court of Appeal in Blacktown City Council provides useful guidance in applying the concept of legitimate forensic purpose to a subpoena issued in a civil action. A request for documents pursuant to a subpoena will generally be regarded as having a legitimate forensic purpose if it falls into one of the following categories: (a) On the face of the documents sought, they are relevant to issues in the proceedings (Blacktown City Council at [65], [80] and [89]); (b) There is a reasonable basis for concluding that the documents will materially assist on an identified issue (Blacktown City Council at [65], [80] and [89]); or (c) They may provide a basis for cross examination or have relevance to matters of credit (Blacktown City Council at [40], [61], [70] and [89].

45. In view of s 5A of the Court Procedures Act 2004 (ACT), another legitimate forensic purpose may be the pursuit of documents likely to facilitate the resolution of the dispute quickly, inexpensively and efficiently.

46. In this case, in circumstances where the plaintiff asserts a psychological injury that includes exacerbation of an underlying psychological condition, I am satisfied that the treating medical records held by Katungul are likely to be relevant to a fact in issue in the proceedings. As a consequence, a legitimate forensic purpose for their disclosure is established.

47. As to the second limb of the test, I am mindful that it is not yet established that any material to be produced by Katungul, in fact contains a protected confidence. The analysis must proceed on the basis that the material to be produced may include protected confidence evidence, but that the evidence in respect of which leave is sought is, at this stage, the entirety of the medical records that meet the schedule in the subpoena.

48. There are two matters raised by the report of Dr Klug that, in my view, make it likely the material in respect of which leave is sought will materially assist the applicant’s case.

49. The first matter is the opinion expressed by the doctor that the psychological condition suffered by the plaintiff is in the nature of an exacerbation of a pre-existing psychological condition in the form of post-traumatic stress disorder and a persistent depressive disorder. The second is the doctor's diagnosis of an exacerbation of a pre-existing alcohol use disorder, in the context of a history he received of a reduction in alcohol intake following the death of the plaintiff's father and prior to the subject events, and a significant increase in alcohol intake following the subject events. In respect of each of the identified conditions which the doctor concludes have been exacerbated by the subject events, there will be a need for the defendants to assess whether the factual history underpinning that diagnosis is reliable. It is readily apparent that medical records from treating practitioners throughout the relevant period have at least the potential to inform the reliability of the history the plaintiff has provided.

50. There can be no doubt that, where a diagnosis of exacerbation or aggravation is made that includes a conclusion from the medical expert that the subject events have resulted in a marked exacerbation of underlying conditions, the defendant party is confronted with the task of determining whether it is possible to disentangle the consequences of the pre-existing condition from the contribution of the subject events (see Watts v Rake (1960) 108 CLR 158; 34 ALJR 186 at 160; Purkess v Crittenden (1965) 114 CLR 164; 39 ALJR 123 at 171; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; 64 ALJR 316 at 642). In the circumstances, I am satisfied that whether they impact the analysis positively or negatively from the perspective of the defendants, the records are likely to assist the defence case, either in providing a basis for challenging the reliability of the plaintiff’s history or in confirming or corroborating that history, such that the defendants are better placed in responding to the claim.

51. For the reasons given above, I am satisfied that the requirements of s 79D(3)(a) and s 79F(2) are satisfied.

52. As to the balance of the arguments raised by the plaintiff in opposition to the granting of leave, there may be circumstances in which evidence from a medical expert will be required to support the proposition that access to certain records will materially assist an applicant’s case. No requirement of the kind arose in these circumstances because the evidence of Dr Klug is of itself sufficient to demonstrate that the two separate elements in s 79F(2) are, in this case, satisfied.

Orders

53. I therefore make the following orders: (1) The first to fourth defendants have leave pursuant to s 79D(3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to issue a subpoena to Katungul Aboriginal Corporation Regional Health and Community Services in the form of annexure MM3 to the affidavit of Melanie McKean affirmed on 25 July 2025, limited in time to records brought into existence from 1994 onwards, with the exception of records relating to imaging and pathology. (2) The costs of the application are costs in the cause.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: