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A preliminary examination of the records

9. Section 79G of the EMP Act requires me to undertake a preliminary examination of the records produced before deciding whether leave to inspect and disclose the records should be given: Francis (a pseudonym) v Commonwealth (No 3) [2023] ACTSC 382 at [8] (Mossop J).

10. A record of the preliminary examination must be made and is not to be made available for public access. In this case, there were in excess of 4,500 pages to be inspected. Section 79G does not mandate the scope of the examination required although it empowers the court to take various steps in furtherance of its task including: (a) requiring the production of a document; (b) requiring a counsellor who has provided counselling to answer written questions or attend the court for oral examination; and (c) permitting a counselled person to provide a written statement concerning the harm they are likely to suffer where leave is given.

11. Ultimately, the preliminary examination must be sufficiently thorough to enable a determination of the public interest considerations governing the granting of leave to inspect and disclose the documents. That is necessarily something more than a cursory examination of the records produced and in a case such as this, where the records extend to thousands of pages, the burden imposed upon the court is substantial.

12. I have undertaken a preliminary examination, and I am satisfied the documents produced contain protected confidence evidence. For the purposes of completing the preliminary examination and determining whether leave should be given, I do not consider it necessary to take any of the actions available to me under s 79G. The residual question is whether a grant of leave pursuant to s 79H of the EMP Act is appropriate.

What are the requirements for leave to disclose protected confidence evidence?

13. Leave may only be given where, after conducting the preliminary examination, 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: s 79H(1) of the EMP Act. In making the determination, there are mandatory considerations to which regard must be had: (a) the public interest in ensuring victims of sexual offences receive effective counselling or treatment; (b) the capacity for disclosure to dissuade victims of sexual and family violence offences to seek counselling, or to diminish the value of counselling or other treatment; (c) the probative value of the evidence under consideration to a fact in issue in the proceeding and the availability of other evidence of similar or greater probative value about the same subject matter; (d) the likelihood disclosure will affect the outcome in the case; (e) the attitude of the persons to or by whom the protected confidence was made; (f) whether there is a discriminatory belief or bias underpinning the request for disclosure; (g) whether, and if so to what extent, there is a reasonable expectation of confidentiality attaching to the protected confidence, and the potential prejudice to the privacy of any individuals concerned, with due regard to whether those considerations have lessened with the passage of time since the disclosure was made.

14. The list is not exhaustive and, in any particular case, one or more of the mandatory considerations may take on particular significance, or some other consideration relevant to the weighing of public interest considerations may loom large. The task required of the court is an exercise of discretion in the application of the considerations I have described. Is it appropriate to grant leave to inspect and disclose the records in this case?

15. It is a matter of significance that LXS, who is primarily the subject of the protected confidence evidence contained in the records, consents to the inspection and disclosure of the documents. It is also relevant to the task of weighing the public interest considerations mitigating against disclosure that LXS has chosen to commence this litigation, in circumstances where he must have understood its subject matter may involve consideration of his medical history as a component of assessing the impact of the described abuse upon him.

16. Some 20 years have passed since the abuse occurred. The impact of the abuse upon LXS, to the extent it is recorded not only in his medical history but in the records of corrective services pertaining to his periods of incarceration, is directly relevant to the task of assessing his claims of injury and disability.

17. I address each of the mandatory criteria below.

Objection by interested people

18. LXS consents to leave being granted for the disclosure. None of the entities to whom the subpoenas were directed have sought to raise any issue about production of the documents, save that the ACT Education Directorate noted it could not disclose material which it said would identify a mandatory reporter without the compulsion of a court order in accordance with s 865 of the Children and Young People Act 2008 (ACT).

19. It is a relevant matter that the records produced include protected confidence disclosures made by LXS, but about third parties. There may be cases in which in those circumstances it is appropriate to seek further information as to the attitude of the third party to the disclosure of the protected confidence. That is so even though the mandatory consideration in s 79H (3)(g) provides on its face only for the consideration of objection from the person “to or by whom” the protected confidence was made, not the person about whom the protected confidence was made. In this case I do not consider it necessary to seek the views of any third parties in circumstances where orders have already been made for their protection by way of the pseudonym orders in favour of LXS, which in concert with the limitations placed on the use of the material disclosed appear to me to provide an adequate level of privacy for the identified third parties.

The probative value of the evidence, the availability of other probative evidence sources, and the likelihood disclosure will affect the outcome in the case

20. The evidence placed before me for the purposes of the application includes medical opinions of Dr Elnike Brand, psychiatrist, and Dr David Graham, psychiatrist and psychotherapist. Dr Brand diagnoses LXS as suffering from a complex post-traumatic stress disorder. She notes the diagnosis is controversial in that it does not appear in the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric th Association, 5 ed, 2013). It is however recognised in the World Health Organisation, th International Classification of Diseases (11 ed, 2022). For WHO purposes, the additional symptom clusters necessary for a diagnosis of complex PTSD are: (a) affective dysregulation; (b) negative self concept; and (c) disturbances in relationships.

21. Dr Brand is satisfied that LXS meets the symptomatic criteria for the diagnosis of complex PTSD. She is also satisfied of the direct causal linkage between the condition and his childhood sexual abuse. Having said that, she identifies other predisposing factors including a genetic predisposition and a prejudicial upbringing. Dr Brand identifies a positive connection between LXS’s complex PTSD and his education and employment experiences. Similarly, she recognises a link between the condition and his criminal offending behaviour.

22. The diagnoses proposed by Dr Graham are somewhat more complex. He identifies: (a) Schizophrenia; (b) Post traumatic Stress Disorder with Dissociative Symptoms; (c) Persistent Depressive Disorder; (d) Stimulant Use Disorder in Remission; (e) Cannabis Use Disorder in Remission; (f) Alcohol Use Disorder in Remission; (g) Tobacco Use Disorder in Remission; (h) Antisocial Personality Disorder; and (i) Male Hypoactive Sexual Desire Disorder.

23. While accepting the significance of the childhood abuse as a contributor to LXS’s symptom complex, Dr Graham identifies a number of challenges in assessing causation, not the least of which is the intertwining of the impact of the abuse from LXS’s father and the abuse he received while he was a student at Kaleen Public School. Accepting the claim is presently framed so as to visit the impact of both circumstances of abuse on the Territory, a conceivable outcome is that only one of the two circumstances of abuse will be attributed to some fault on its part. In that event, there may be a need to address the relative contribution of each of the described cicumstances of abuse.

24. In addition, Dr Graham identifies other conditions impacting upon LXS’s function, including his experience of seizures and his use of drugs and alcohol. The records I have inspected include references to prospectively unrelated conditions and disabilities that may bear on LXS’s past, current and future level of function.

25. Weighing all of those factors, I consider it likely the protected confidence evidence will be of probative value and is likely to affect the outcome in the case. There is no evidence before me to indicate evidence of similar or greater probative value is available from other sources.

Is there evidence of discriminatory belief or bias underpinning the defendant’s application?

26. The Territory reads an affidavit of Kylie Stitt, affirmed on 5 March 2026. As Ms Stitt identifies, the information sought via subpoena is relevant to consideration of the extent of LXS’s injuries and disabilities attributable to any compensable injury, and the quantification of his claim. I am satisfied there is a proper basis for seeking access to the medical records and no discriminatory belief or bias is identified.

Ensuring victims of sexual offending receive effective counselling or other treatment

27. This consideration is directed not to the particular facts of this case but to the need to reflect upon the risk that disclosure of confidential personal information in the context of counselling communications for sexual abuse or family violence carries the risk of discouraging other victims from making disclosures and of diminishing the value of the provision of counselling.

28. I have taken that broader consideration into account. However, in this case, the forensic decision of LXS to bring the proceedings and his consent to disclosure weighs against the general imperative to protect the confidences.

The nature and extent of the reasonable expectation of confidentiality and potential prejudice to privacy

29. The protected confidence disclosures in this case were made in circumstances where disclosures had already been made concerning abuse perpetrated by LXS’s father against LXS and other members of his family. In those circumstances, it is likely LXS’s expectation of confidentiality at the time the subject disclosures were made was lessened by his knowledge of the extent to which the subject information was already at least to some extent publicly available.

30. After weighing all of the mandatory considerations, I consider it appropriate in this case to give leave for inspection and disclosure of the protected confidence evidence. I have not identified any other considerations beyond those addressed above which I consider to be relevant to the assessment task required of me.

Orders

31. I therefore make the following orders: (1) The parties have leave pursuant to ss 79D(2) and 79H(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to disclose in, and for the purposes of, this proceeding the documents containing protected confidences produced by ACT Corrective Services, Justice and Community Services Directorate, Canberra Health Services, ACT Education Directorate and Florey Medical Centre, received by the court on 13 April 2026. (2) The plaintiff has first access to inspect and copy documents produced to the court by each of the entities named in order (1) for a period of three (3) days from the date of these orders, and the defendant thereafter has access to inspect and copy the documents.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.

Associate: Date: