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1. Ms Coffison asserts she was a victim of sexual and physical abuse as a child, between the years 1996 to 2001. She was in that period a ward of the state, first in facilities in the ACT and later at a facility in Queensland. The asserted abuse occurred in both jurisdictions.

2. She says she suffered severe psychiatric injury as a consequence of the abuse. The Territory is on notice of her claims as the entity responsible for the facilities operated in the ACT. The State of Queensland is on notice as the entity responsible for the facility operated in that state. I understand the third defendant to the application, Richmond Fellowship ACT Inc., was the organisation entrusted with responsibility for operating the facilities in the ACT.

3. Personal injury proceedings are yet to be commenced by Ms Coffison, but she has filed an originating application seeking the court’s leave to issue subpoenas to a number of organisations holding her medical records. Those organisations are: (a) Capalaba Medical Centre; (b) Healthy Relationships and Psychology; (c) Satori Counselling services; and (d) Evolve Wellbeing Psychology.

4. In usual circumstances it would be open to those acting for Ms Coffison to utilise an authority signed by her to obtain records of this kind. They have elected not to proceed in that way in the belief the subject medical records are likely to contain protected confidence evidence within the meaning of Div 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act), and in those circumstances they contend there is a necessity for leave before seeking access to such records.

5. An affidavit affirmed by Kaylie Edwards on 24 June 2026 is read in support of the application. Ms Edwards is Ms Coffison’s solicitor. In her affidavit she sets out in some detail the allegations of abuse suffered by Ms Coffison in the relevant period. There is no need to address those assertions in greater detail for the purposes of this application. I am also assisted by written submissions prepared by Ms Edwards and the Territory.

6. The only orders sought at this time are concerned with leave to issue subpoenas for relevant medical records. Importantly, there is no dispute between the parties about the appropriateness of seeking the records under consideration. That is, there is no dispute a legitimate forensic purpose exists in the context of Ms Coffison’s claim and there is an arguable case the documents will materially assist Ms Coffison’s claim.

7. The point of difference between the parties is whether leave to request the documents is required at this time at all. Ms Coffison argues leave is required even though she is yet to commence court proceedings for her personal injury action. She says to hold otherwise would be to enable parties in the pre-court phase to access at will documents otherwise meeting the definition of protected confidence evidence, and to do so without the benefit of the supervisory regime created by the EMP Act. That, she submits, could not have been the intent of the legislature.

8. The Territory argues the legislative scheme established by the EMP Act for dealing with protected confidence evidence has no application until court proceedings are commenced for the asserted personal injury. Accepting the inconsistency then arising between the strict regulatory regime imposed once proceedings are commenced and the absence of any controls on accessing protected confidence evidence before proceedings are commenced, the Territory argues the inconsistency is an unavoidable consequence of the plain words of the legislation.

The background to the legislative protection of counselling communications

9. McCallum CJ addressed relevant historical matters in Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210 at [1]: As a result of the extensive work last century of the Model Criminal Code Officers Committee (a Committee of the Standing Committee of Attorneys-General), it is now commonplace in jurisdictions across Australia for there to be a statutory qualified public interest immunity against disclosure of confidential counselling communications between counsellors and their clients in respect of allegations of sexual assault or family violence. In the Territory, this immunity is provided for in div 4.4.3 of ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Among other protections, the provisions of div 4.4.3 impose a requirement for leave of the Court before a party can seek to compel the production of any document that records a “protected confidence” within the meaning of the Act.

10. The presentation speech for the introduction of amendments extending the operation of the protected confidence scheme to civil proceedings, provides relevant insights. When first introduced in 2003, the regime applied only to the use of such material in criminal matters. In his speech addressing the amendment in 2011, Mr Corbell, the then Attorney- General, said: There is no compelling reason why the protections afforded in criminal proceedings should not be extended to civil proceedings. The public interest in encouraging victims of sexual assault to seek counselling exists in both the criminal and civil sphere. Indeed, legislation in New South Wales, South Australia and Victoria provides protection in civil and criminal proceedings. The extension has been agreed by stakeholders.

11. The explanatory memorandum for the amendment went further: The amendments strike a balance between ensuring that victims do not face unreasonable barriers in adducing evidence of their own counselling communications, and ensuring that unreasonable barriers are not created for other parties which could adversely impact on the administration of justice in the Territory.

12. Division 4.4.3 of the EMP Act establishes a process of court supervision for the seeking, inspection and use of protected confidence evidence. The supervision begins before the documents are requested with a requirement for the requesting party to establish a legitimate forensic purpose for seeking the documents, and an arguable case the evidence will materially assist the requesting party’s claim in the proceeding. The supervision continues with the imposition upon the court of an obligation to undertake a preliminary examination of the documents once produced, before any party inspects and uses them.

13. The next step is disclosure of the documents for use in the proceedings. In deciding whether to permit disclosure, the starting point for the court’s analysis is the public interest in preservation of the confidentiality of protected confidence evidence. It is only where the public interest in ensuring the proceedings are conducted fairly outweighs the public interest in preservation of the confidence that disclosure is permitted. The motivation behind the restriction is made clear in the terms of s 79H(3) of the EMP Act where there is express reference to the public interest in ensuring victims of sexual offences receive effective counselling or other treatment and that victims generally are not dissuaded from seeking such counselling and treatment in the future.

The competing positions of the parties

14. In support of her application Ms Coffison submits: (a) although personal injury court proceedings have not yet commenced, they are anticipated, and a personal injury claim notification has been served; (b) there is a likelihood the subject records will contain counselling communications which would be caught by Div 4.4.3 of the EMP Act; (c) the clear intent of the legislation is to protect the counselled person and to ensure victims of sexual offences are able to seek counselling assistance; (d) it would be unusual and contrary to that intent if the records of a counselled person cannot be requested or disclosed without leave once proceedings have commenced, yet there is no requirement for leave when proceedings are merely contemplated; and (e) in any event, as the plaintiff has filed an originating application, proceedings have been commenced and the court has power to grant the orders sought in the proceedings commenced by originating application.

15. The Territory submits: (a) there is no originating process filed in relation to a personal injury claim; (b) the originating application is not a proceeding to which Div 4.4.3 of the EMP Act applies. It must be a substantive proceeding as it is the use of protected confidences information in or for the purpose of a proceeding that forms the purpose for the grant of leave; (c) as such there is no relevant proceeding on foot; (d) s 79D(1) of the EMP Act specifies the provision only applies in relation to a proceeding. Proceeding is defined as a civil or criminal proceeding; (e) in this case the “proceeding” is Ms Coffison’s personal injury claim for which no originating process has been filed; (f) if the originating application is a proceeding, the requirements of s 79F(2)(b) and s 79H(1)(a) of the EMP Act must be satisfied, and they cannot be satisfied in the absence of a substantive proceeding; and (g) accepting the observations of McWilliam J in Hall (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113; 394 FLR 223 as to the inherent tension between Div 4.4.3 of the EMP Act and Ch 5 of the Civil Law (Wrongs) Act 2002 (ACT) (the CLW Act), her Honour did not propose or encourage a process whereby an application for leave under s 79D of the EMP Act is made or required in furtherance of compliance with the pre-court requirements in Ch 5 of the CLW Act.

What is the triggering event for the application of Div 4.4.3 of the EMP Act?

16. The structure of the legislation betrays its original application only to criminal proceedings, with the extension to civil proceedings occurring at the time of the introduction of the Evidence (Miscellaneous Provisions) Amendment Act 2011 (ACT): see for example s 37 of the EMP Act. Somewhat unhelpfully a proceeding is defined in s 79 of the EMP Act as “a civil or criminal proceeding” and a civil proceeding “does not include a criminal proceeding”. The general immunity from disclosure of protected confidence evidence offered in s 79D of the EMP Act expressly applies in the context of a proceeding. Similarly, the test for a legitimate forensic purpose in s 79F(2) of the EMP Act is expressed in terms including satisfaction of the court in the context of a proceeding.

17. The definition of a proceeding in the Legislation Act 2001 (ACT) is also of little assistance in this context: Dictionary Part 1 Meaning of commonly-used terms … proceeding means a legal or other action or proceeding.

18. Notwithstanding the absence of clear guidance in the defined terms, the legislation is drafted in such a way as to indicate the triggering event for a request for leave to seek documents is the existence of a proceeding in a court.

How is a “proceeding” defined for the purposes of the EMP Act?

19. The definition of a proceeding in the context of a civil proceeding does not extend beyond the paragraphs identified above. The area of dispute between the parties raises the question whether the notification of a claim under the CLW Act meets the definition of a proceeding for the purposes of the EMP Act. That question must be answered negatively for the reasons which follow.

20. As a starting point, for the establishment of a legitimate forensic purpose within the meaning of s 79F(2) of the EMP Act, the court must be satisfied of an arguable case the evidence in question will materially assist the applicant’s case in the proceeding. The section envisages the seeking of leave in a proceeding in a court as distinct from the claim notification and consequent document disclosure requirements operating in the pre-court phase under the CLW Act.

21. Section 79D(2) of the EMP Act is of similar effect, referring in terms to disclosure in or for the purposes of the proceeding, and prohibits disclosure, “unless the court dealing with the proceeding gives leave for the disclosure”. Although “for the purposes of the proceeding” may be interpreted sufficiently widely to encompass an anticipated proceeding, such an interpretation does not leave the latter portion of the subsection with any work to do. The court with responsibility for granting leave is the court dealing with the proceeding. That would not extend to a court called upon to deal with a discrete question of leave in circumstances where the “proceeding” relied upon is a personal injury claim notification under the CLW Act. Is the originating application a proceeding?

22. The position is altered to some degree with the filing of an originating application. That step commences a proceeding in the court and thus creates a court proceeding in which the requirements of Div 4.4.3 of the EMP Act may prospectively be addressed.

23. However, as I have alluded to above, it is implicit in s 79F(2) of the EMP Act that the court determining an application for leave is able to assess whether material assistance is afforded in the context of the proceeding in which leave is sought. The proceeding must be one the substance of which enables the court to address that question.

24. With the filing of the originating application there is a proceeding. But it is a proceeding which is limited to an application for leave pursuant to s 79D of the EMP Act. There is no substantive pleading against which the establishment of a legitimate forensic purpose for leave may be assessed – let alone a pleading enabling the court to undertake the exercise of weighing public interest considerations for the purposes of assessing whether leave should be granted to disclose documents produced. I am satisfied the references to a proceeding in Div 4.4.3 of the EMP Act relate to a proceeding of substance, whereby the court in which the proceeding is brought is equipped with capacity to address the requirements of the division as they relate to the pleaded cause of action.

25. The originating application filed in this case is not a proceeding for the purposes of Div 4.4.3 of the EMP Act.

Is leave required before seeking production of the records?

26. In the absence of a proceeding there is no requirement for leave to seek, and in turn, disclose protected confidence evidence. I am satisfied the scheme for court supervision of the use to be made of protected confidence evidence created by Div 4.4.3 of the EMP Act does not extend to seeking access to and using documents prior to the commencement of substantive court proceedings.

27. On its face the absence of supervision of the use of protected confidence evidence prior to the commencement of proceedings appears entirely inconsistent with the objects of Div 4.4.3 of the EMP Act. As McWilliam J observes in Hall at [18]-[25] the inconsistency may be explained by the tension existing between the desirability of protecting the confidences of vulnerable persons in the context of court proceedings, and the equally desirable object of an open exchange of information prior to the commencement of proceedings with a view to facilitating compromise resolution of disputes without the need for a court process at all.

28. Thus, where protected confidence evidence is secured prior to the commencement of proceedings, the initiation of those proceedings invokes Div 4.4.3 of the EMP Act and immediately imposes on the parties obligations relating to the use and disclosure of the documents in or for the purposes of the proceedings – but not until then.

Orders

29. For the reasons given above I make the following orders: (1) The originating application lodged on 25 June 2026 is dismissed; (2) Each party is to bear their own costs of the application.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 10 September 2026