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The requirements for leave to inspect and disclose protected confidence evidence

6. The path to obtaining leave to inspect and disclose medical records is a narrower one than that applying to an application to seek records, noting something more than a legitimate forensic purpose and the likelihood of records being of assistance is required. At this stage of the process leave may only be given where I am satisfied the public interest in ensuring the proceedings are conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence. Section 79H(3) of the EMP Act sets out mandatory considerations to which I must have regard noting the list of matters is not to be viewed as exhaustive: 79H Giving of leave to disclose protected confidence (3) In making a decision under subsection (1), the court must have regard to— (a) for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and (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. (4) Subsection (3) does not limit the matters to which the court may have regard.

7. In Baker (a pseudonym) v Commonwealth (No 2) [2026] ACTSC 186 at [11], I identified other factors prospectively of relevance in the weighing exercise: (a) the particular circumstances in which the disclosure was made; (b) the conduct of any party to the proceedings bearing on public interest considerations; (c) the importance of protection of an individual’s right to privacy; and (d) the prospect of information relevant to the outcome of the proceedings being secured from sources other than the protected confidence evidence

8. The list above is also not exhaustive and the relevant public interest considerations in each case may be unique.

Is a grant of leave appropriate in this case?

9. In this case medical records are produced because DC brings a personal injury action seeking damages for injuries including psychological injury. In that sense DC has put the cause of her present injuries and disabilities in issue: Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 at [29]. It is also DC who seeks the orders for disclosure of the records.

10. As to the other mandatory considerations, I note the records have been produced without objection, and DC’s legal representatives have been afforded the opportunity to consider the documents (albeit without leave) before electing to proceed with this application. Medical records dealing with related and unrelated medical conditions affecting DC’s functional capacity and need for treatment are likely to be of probative value in a personal injury action for damages. There are unlikely to be other equivalent sources for the same kind of information. On the contrary, there is a likelihood any other treatment records dealing with the same factual history will be subject to similar protected confidence constraints. I accept this is a case where the nature of the action pursued creates a likelihood medical records detailing past injuries and conditions will affect the outcome in the case.

11. I have not identified any other factors specific to DC’s claim that are of significance in the weighing of public interest considerations. In every case there is a need to reflect upon the statutory imperative to restrict disclosure of protected confidences material so as not to deter victims of sexual abuse or family violence from making relevant disclosures. With due regard to the imperative, in this case I am satisfied the public interest in ensuring a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence such that an order for leave to inspect and disclose is appropriate.

12. To the extent DC also seeks orders to rely on the material produced for the purposes of the proceedings, the application is premature. To rely upon records produced for the purposes of an ultimate hearing in the matter is a question most appropriately addressed by the trial judge.

Orders

13. I therefore make the following orders: (1) The parties have leave, nunc pro tunc, pursuant to ss 79D and 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), to disclose in and for the purposes of this proceeding documents containing protected confidences produced by: (a) Crane Psychology; (b) Strategic Psychology; (c) Northside Psychology; and (d) Florey Medical Centre. 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: 15 July 2026