//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] ACTSC 151
Supreme Court of the ACT
2026-05-20
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: CN v ACT Citation: [2026] ACTSC 151 Hearing Date: 6 February 2026 Decision Date: 20 May 2026 Before: Muller J Decision: See [11] Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – Application for leave to disclose and rely on protected confidences – mandatory considerations in granting leave – counselling communications – court inspection conducted – plaintiff’s application – leave granted Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79A, 79D, 79H Parties: CN (Plaintiff) Australian Capital Territory (First Defendant) Icon Water Ltd (Second Defendant) Representation: Counsel R. Gill (Plaintiff) S. Perera (First Defendant) I. Meagher (Second Defendant) Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (First Defendant) Bradley Allen Love Lawyers (Second Defendant) File Number: [redacted] MULLER J:
CN alleges suffering injury on 1 June 2022 when CN tripped and fell on a protruding hydrant cover whilst jogging along the footpath adjacent to Ellerston Avenue in Isabella Plains, ACT. CN claims a range of physical injuries as a result of the fall, and CN also suffers psychological consequences. CN sues the Territory as the entity responsible for maintenance of roads and foot paths. CN sues Icon Water Ltd as the entity responsible for maintenance and service of fire hydrants.
In the course of the proceedings, Icon Water Ltd filed notices for non-party production directed to Winnunga Nimmityjah Aboriginal Health Services, Canberra Health Services and the Australian Institute of Health and Welfare, with a view to gaining access to the medical records of CN. Documents have been produced by each of those entities. CN’s legal advisers have examined the material produced and they say the documents contain counselling communications which are protected confidences within the meaning of s 79A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act). As a consequence, CN applies for leave to deal with the documents for the purposes of the proceedings. In this case CN is the person primarily entitled to the protection the protected confidences legislation affords.
I previously made orders on a retroactive basis giving leave for the notices for non-party production, referred to above, to be issued. Those orders were made on the basis of my satisfaction that a legitimate forensic purpose for the issuing of the notices was established. I advised the parties I would consider making the further orders sought in the application, for disclosure and use of the documents produced, after undertaking an inspection of them, noting the documents comprise some 1500 pages.
I have now undertaken that inspection.
Is it appropriate to give leave to disclose the protected confidence?
There is no requirement for leave in relation to documents produced by the Australian Institute of Health and Welfare as I have identified no protected confidences within that material.
As for the balance of the documents, the question to be addressed is whether the public interest in ensuring the proceedings are conducted fairly, outweighs the public interest in preserving the confidentiality of the protected confidence. Mandatory considerations are set out in s 79H(3) of the EMP Act, although the list is not exhaustive: 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.
Relevantly in CN’s case, his injuries include mental harm and anxiety. CN also asserts a complex pain syndrome, behavioural changes, alterations in cognition and mood, loss of pleasure, lost motivation, depression and mental harm.
Disclosure orders are appropriate in this case as the public interest in ensuring the proceedings are conducted fairly, outweighs the public interest in preserving the confidentiality of the protected confidence. I have reached that view because: (a) CN is the subject of the protected confidences, and he makes the application for the disclosure; (b) with reference to the injuries and disabilities CN asserts as a consequence of this accident, there is a likelihood disclosure of the records containing the protected confidences will affect the outcome of the case; (c) there is no material before me to demonstrate evidence of a similar or greater probative value is available from other sources; (d) there is a likelihood the records containing the protected confidences will be of assistance to expert witnesses retained in the matter, and in turn, to the court in assessing issues of causation in CN’s case; and (e) I have had regard to the policy considerations underpinning the protected confidence legislation and the desirability of ensuring confidentiality of such communications so as not to dissuade victims of sexual offences from seeking counselling or otherwise to diminish the value of the counselling they may receive. However, in this case there is sufficient risk, without the disclosure, of the proceedings not being conducted on a fair basis.
At the request of CN, I will also make a pseudonym order.
The final matter raised by the application is the issue of leave to rely on the disclosed documents for the purpose of the hearing. That is a matter more appropriately addressed by the trial Judge and I therefore make no orders in that regard.
Orders
Associate: MG Malouf Date: 20 May 2026
CN
ACT