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Should leave be granted for production of the documents?

6. Daramalan College reads an affidavit of Catherine Elizabeth Power, solicitor, affirmed on 22 July 2026. Ms Power explains the failure to make an earlier request for leave on the basis of an affidavit sworn by Mr Eady in 2005. In that affidavit Mr Eady attested to having made limited prior disclosures of his childhood abuse to persons not including those who were requested to produce documents. Abundant caution may have prompted another course notwithstanding Mr Eady’s earlier affidavit, given the nature of the complaint he makes in the proceedings and his disclosed mental health history. However, I am mindful of the burden imposed on parties, and on the court, in managing protected confidence documentation and the decision to defer making a request for leave until it proved necessary is, in the circumstances, entirely understandable.

7. The two matters required under s 79F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) before leave can be given to request relevant documents are: (a) the identification of a legitimate forensic purpose for seeking leave; and (b) the demonstration of an arguable case the evidence will materially assist the applicant’s case in the proceedings.

8. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145; 118 NSWLR 336, in dealing with the validity of a subpoena issued in civil proceedings, Brereton JA observed at [88] that a “legitimate forensic purpose” is the converse of an “abuse of process”. A legitimate forensic purpose is often defined with reference to the second part of the test in s 79F of the EMP Act, that is, a legitimate forensic purpose will be established where it is likely the documents sought will materially assist the case of the party seeking production. It is important to recognise the two limbs of the test are distinct and are intended to be distinct. Having said that, where it is established that the documents sought are likely to materially assist the seeking party’s case, it is difficult to envisage a circumstance in which a legitimate forensic purpose is not established. There may be cases where a legitimate forensic purpose exists notwithstanding a party has failed to establish the documents sought are likely to materially assist their case. For the purposes of s 79F of the EMP Act both limbs must be satisfied. Where the second limb is satisfied, the first is also highly likely to be satisfied. In Blacktown City Council Bell P observed at [65]: It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.

9. In this instance I am satisfied a legitimate forensic purpose for seeking the documents is established and the material is likely to assist the case of Daramalan College. I have reached that view because the proceedings are personal injury proceedings founded primarily on a claim for psychological injury. The subject records deal with treatment for, and disclosures about, Mr Eady’s mental health over many years. The records are therefore likely to assist, where Mr Eady establishes a breach of the duty owed to him by the college, in calculating damages flowing to him as a consequence of the sexual abuse occurring at the college as opposed to other causative factors.

Is leave required to inspect and disclose the records?

10. The second requirement for leave arises where there is a request to use and disclose records produced that contain protected confidences.

11. Before that leave can be given, the court is required to undertake a preliminary examination of the documents in accordance with s 79G of the EMP Act. In this case the documents comprise several hundred pages. I have undertaken a preliminary examination. Having undertaken the examination, I am satisfied the subject documents contain protected confidence evidence and leave is therefore required for their use and disclosure.

Should leave be granted to disclose the documents?

12. The matters to which a court must have regard in applying the public interest test for disclosure are set out in s 79H(3) of the EMP Act: 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.

13. The list is not exhaustive, and the facts of a particular case may give rise to other important considerations. With reference to the mandatory criteria, matters of significance in this case are: (a) Mr Eady consents to the use and disclosure of the medical records containing the protected confidence evidence. He is the person whose privacy is most significantly impacted by use and disclosure of the material. (b) Mr Eady brings these proceedings for personal injury, asserting psychological injury. He relies upon two opinions from the psychiatrist Dr Jonathan Phillips. Dr Phillips has had access to Mr Eady’s medical history. Mr Eady has also been assessed by Dr Clayton Smith, psychiatrist, for Daramalan College. Mr Eady’s experience of the process of assessment required for compiling expert opinions must have alerted him to the likelihood of some scrutiny of his medical and mental health history for the purposes of these proceedings. (c) There is no indication the relevant information contained in the medical and corrective services records is likely to be available from another source not containing protected confidence evidence. (d) The medical opinion of Dr Phillips was relied upon in support of Mr Eady’s successful application to set aside his previous deed of settlement reached with the college. That is a relevant matter in weighing the extent to which disclosure is necessary for the purposes of achieving a fair trial. (e) I have taken into account the importance of the protection of relevant disclosures, so victims of family violence and sexual abuse are not discouraged from making disclosures or from seeking treatment for the consequential health impacts of events of violence and abuse.

14. After considering the matters identified above, I am satisfied the public interest in ensuring the proceedings are conducted fairly by permitting the use and disclosure of the subject records outweighs the public interest in preserving their confidentiality.

Orders

15. I therefore make orders as follows: (1) Leave is granted, nunc pro tunc, pursuant to s 79D(3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to issue subpoenas for production in relation to the plaintiff to the following entities: (a) Queensland Health; (b) ACT Department of Corrective Services; and (c) Gungahlin Medical Centre. (2) Leave is granted, nunc pro tunc, pursuant to s 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to inspect and disclose protected confidence evidence produced under subpoena issued to the following entities: (a) Queensland Health; (b) ACT Department of Corrective Services; and (c) Gungahlin Medical Centre. (3) The costs of the application are costs in the cause.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 29 July 2026