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[2026] ACTSC 289
Supreme Court of the ACT
2026-08-13
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: Grant v Daramalan College Ltd Citation: [2026] ACTSC 289 Hearing Date: 29 April 2026 Decision Date: 13 August 2026 Reasons Date: 18 August 2026 Before: Muller J Decision: See [13] Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – Protected Confidences – Application for leave to disclose and use protected confidence evidence – where material has been inspected by the court – mandatory considerations – leave granted Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79, 79A, 79G, 79H, Pt 4.4 Cases Cited: Baker (a pseudonym) v Commonwealth (No 2) [2026] ACTSC 186 Parties: Adam Geoffrey Grant (Plaintiff) Daramalan College Ltd (Defendant) Representation: Counsel T Seymour (Plaintiff) B Stoney (Defendant) Solicitors Porters Lawyers (Plaintiff) Wotton Kearney (Defendant) File Number: SC 494 of 2025 MULLER J:
On 13 August 2026, I made the following orders: 1. Leave is granted 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 health service providers: (a) Josephine Miller (Breathing Space Sunshine Coast); (b) Josephine Miller (Anxiety House Sunshine Coast); (c) Sunshine Coast Family Clinic; and (d) Dr David Voon. 2. The usual order as to access is made. 3. The costs of the application are costs in the cause. 4. Reserve the publication of reasons.
My reasons for doing so are set out below.
On an earlier occasion, I made orders giving leave to Daramalan College to issue subpoenas for production seeking access to medical records from: (a) Josephine Miller (Breathing Space Sunshine Coast); (b) Josephine Miller (Anxiety House Sunshine Coast); (c) Sunshine Coast Family Clinic; (d) Dr David Voon; and (e) Dr Pradith Southi.
All of the parties other than Dr Southi have now produced.
Mr Grant was a student at Daramalan College between 1992 and 1996. He was aged 13 years in 1992 when he commenced year 7. He says he was subject to sexual abuse during his time at the school, perpetrated by a science teacher named Paul Lyons. Mr Grant asserts consequent psychological injury, and he sues the college for damages as the entity ultimately responsible for Mr Lyons’ conduct.
Leave was granted previously to Daramalan College to seek access to medical records from the entities described above on the understanding those records were considered likely to contain protected confidence evidence within the meaning of Pt 4.4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act). I accepted in the circumstances of Mr Grant’s claim there was a legitimate forensic purpose in seeking the records and I was satisfied Daramalan College would likely be assisted by the records in responding to his claim.
Records having now been produced in response to four of the five subpoenas issued, the next step is for the court to undertake a preliminary examination in accordance with s 79G of the EMP Act. The records produced to date comprise approximately 200 pages and I have now inspected them.
Is leave required to inspect and disclose the records?
The records include those produced by a psychologist, who is a person clearly meeting the definition of a “counsellor” pursuant to s 79 of the EMP Act. They contain references to sexual violence offences disclosed in the course of counselling. As Mr Grant is a person against whom a sexual offence is alleged to have been committed, the counselling communications are protected confidences within the meaning of s 79A of the EMP Act. That is so whether or not the counselling communications contain references to the sexual offence or to medical conditions arising from the sexual offence.
Where the counselling communications meet the definition of a protected confidence leave is required for their use and disclosure. The test for granting leave is contained in s 79H of the EMP Act: 79H Giving of leave to disclose protected confidence (1) After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that— (a) for a civil proceeding—the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; … The public interest considerations in this case
In deciding whether disclosure is sufficiently in the public interest to be warranted, the court must have regard to the matters set out in s 79H(3) of the EMP Act which are, relevantly: (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.
The list in s 79H(3) of the EMP Act is not exhaustive, and the circumstances of a particular case may see additional considerations emerge as significant. In Baker (a pseudonym) v Commonwealth (No 2) [2026] ACTSC 186, I identified other matters that may be of relevance at [11]: 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.
In a personal injury action for psychological injury, where there is evidence in medical records of an alternative explanation for psychological symptoms arising before or after the subject abuse, and potentially unrelated to it, there will often be a compelling public interest in permitting disclosure. Even then it must be weighed against the public interest considerations comprised in the mandatory matters listed in s 79H(3) of the EMP Act.
In applying all of the relevant considerations in this case I note: (a) the importance of protecting counselling communications from disclosure so as not to discourage victims of sexual violence offending from making disclosures or from receiving effective counselling and treatment; (b) the records were clearly created in circumstances where there was a reasonable expectation of confidentiality attaching to the communications; (c) there is no evidence of discriminatory belief or bias underpinning the application for disclosure; (d) Mr Grant has commenced this action and has put in issue his medical history insofar as it bears on the identification of the causes of his injuries and disabilities; (e) Mr Grant is the person whose privacy is most fundamentally impacted by the disclosure. He was afforded a number of opportunities via his solicitor to indicate his position in relation to disclosure of the records and he failed to do so; (f) my inspection of the records indicates there is a reasonable likelihood, in assessing issues of causation and contribution, they will have a substantial probative value and there is a likelihood they will affect the outcome of the case; and, (g) there is no evidence before me to suggest the information contained in the records is likely to be available from another source.
After due consideration of the matters set out above, I am satisfied the public interest in ensuring the proceedings are conducted fairly by permitting the use and disclosure of the records outweighs the public interest in preserving their confidentiality.
Orders
I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: Date:
Grant
Daramalan College Ltd
[2026] ACTSC 186