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Is leave required to inspect and disclose the records?

4. The records contain a number of references to sexual and family violence offences. As those communications occurred in the course of the provision of medical services, it is reasonable to assume the clinicians involved were counsellors within the meaning of s 79 of the EMP Act. As a consequence, the counselling communications meet the definition of a protected confidence.

5. Where they meet that definition leave is required for their use and disclosure. The relevant test is contained in s 79H(1)(a) 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; or Weighing the public interest considerations in this case

6. 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.

7. The list is not exhaustive, and the facts of a particular case may give rise to other important considerations. First, applying the mandatory criteria in this case: (a) I note in the overall sense the importance of the protection of relevant disclosures so as not to discourage victims from receiving effective counselling or treatment. (b) LU makes a claim for, amongst other things psychological injury. An examination of her medical records makes clear she has some relevant prior history. In those circumstances there is a reasonable likelihood in assessing issues of causation and contribution her medical records will have a substantial probative value and there is a likelihood they will affect the outcome of the case. There is no evidence before me to suggest the information contained in those records is likely to be available from another source. (c) LU consents to the disclosure. She is the person whose privacy is most fundamentally impacted by use and disclosure of the protected confidence material, and her consent takes on added significance in those circumstances. (d) In bringing these proceedings and seeking damages, it is likely LU was aware her past medical history would be an issue of significance in the dispute and, as a consequence, there was a reasonable prospect access to her medical records would be sought. (e) LU has given access to records containing protected confidence material to her experts Dr Brew, neurologist, and Dr Elliott, anaesthetist. That disclosure, albeit without leave, is both indicative of the probative value of the material for the purposes of obtaining expert opinion in the proceedings and is relevant in weighing the extent to which disclosure is necessary for the purposes of ensuring a fair trial.

8. For the reasons 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.

9. As I said in CN v ACT [2026] ACTSC 151 at [9], the issue of leave to rely on the disclosed documents for the purpose of hearing is a matter more appropriately addressed by the trial Judge; I will make no orders in that regard.

Orders

10. I therefore make the following orders: (1) Leave is granted, nunc pro tunc, pursuant to s 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to inspect and disclose in and for the purpose of this proceeding protected confidence evidence produced by the following health service providers: (a) Rutledge Family Medical Centre; (b) Mums Matter Psychology; and (c) Canberra Health Services. (2) The application lodged on 26 June 2026 is otherwise adjourned to a date to be fixed to enable a preliminary examination by the court of any records produced pursuant to subpoenas previously issued with leave. (3) Following such production, and examination pursuant to s 79G of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), any further orders granting leave to disclose protected confidence evidence will be made in chambers.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 06 August 2026