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[2026] ACTSC 154
Supreme Court of the ACT
2026-05-21
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: MQ (a pseudonym) v ACT Citation: [2026] ACTSC 154 Hearing Date: 28 November 2025 Decision Date: 21 May 2026 Before: Muller J Decision: See [13] Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – Application for leave to disclose protected confidences – mandatory considerations in granting leave – counselling communication – documents inspected by court – plaintiff consents to disclosure – leave granted Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79D, 79F, 79H Cases Cited: NTD (a pseudonym) v ACT [2026] ACTSC 149 Stanley (a pseudonym) v Commonwealth [2023] ACTSC 157; 378 FLR 210 Parties: MQ (a pseudonym) (Plaintiff) ACT (First Defendant) Richmond Fellowship ACT Inc (Second Defendant) Representation: Counsel M Faraj (Plaintiff) K Law-Jamieson (First Defendant) O Mennie (Second Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) ACT Government Solicitor (First Defendant) Minter Ellison (Second Defendant) File Number: SC 50 of 2025 MULLER J:
Bimberi is a youth detention facility operated by the ACT government for young people aged 12 to 21. MQ was detained at Bimberi at various times in the period from 2009 until 2013. He was a child aged 13 years when he was first detained. MQ says in the period of his detention he was sexually abused by an officer employed at the facility. In addition to physical and sexual assault, he alleges a psychological injury as a consequence of the abuse he suffered. He claims damages from the Territory as the entity responsible for his protection while he was detained.
In addition, MQ sues Richmond Fellowship ACT Inc. In 2009, he was a resident at a facility described as Marlow Cottage and operated by Richmond Fellowship. Marlow Cottage provided short-term and emergency accommodation for 12 to 17-year-olds. MQ says he was physically abused by numerous staff members while he was staying at Marlow Cottage, resulting in physical and psychological injury. He says Richmond Fellowship is responsible for the actions of its employees.
MQ is now aged 30 years. Since his time in Bimberi, he has experienced lengthy periods of incarceration. He has been treated for drug and alcohol-related disorders and he has received regular psychological assessment and treatment, including periods of involuntary detention for that purpose. The records relating to his incarceration, his periodic counselling and his medical treatment are extensive. The records contain disclosures falling within the definition of “protected confidence” in the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
Orders made previously gave permission to the Territory on a retroactive basis to issue subpoenas for production of documents to bodies believed to hold relevant records. Documents have been produced by: (a) Canberra Health Services. (b) ACT Corrective Services, Justice and Community Safety Directorate.
The documents produced comprise in excess of 7,000 pages.
The stages at which leave is required
The protected confidence legislation is framed in such a way as to require leave at three stages. In Stanley (a pseudonym) v Commonwealth [2023] ACTSC 157; 378 FLR 210 at [17]-[25], McCallum CJ identified the stages as: (a) Leave to compel production of protected confidences to the court: ss 79D(3)(a) and 79F. (b) Leave to inspect and make use of the protected confidences after preliminary examination by the court: ss 79D(2) and 79H. (c) Leave to adduce evidence of or to tender the protected confidences in the proceedings: s 79D(3)(b).
Documents having been produced to the Court pursuant to the orders made previously, the parties are now at the second stage.
The requirements for granting leave at the second stage
Before granting leave, the Court must conduct a preliminary examination of the protected confidence evidence. In NTD (a pseudonym) v ACT [2026] ACTSC 149 at [7], I set out the scope of the examination required.
I have undertaken a review of the protected confidence material. The task now required of me in a civil proceeding is set out in s 79H(1). Leave may only be given for disclosure of the protected confidence material 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 confidences. Section 79H(3) sets out a number of matters to which I must have regard in making that assessment although the list is not exhaustive: 79H Giving of leave to disclose protected confidence … (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.
In this case, MQ consents to disclosure of the protected confidence material; one of the factors to which regard must be had.
Is leave to disclose the protected confidence material appropriate in this case?
The documents produced by each of Canberra Health Services and ACT Corrective Services, Justice and Community Safety Directorate contain communications in the nature of a “counselling communication” and fall within the definition of a “protected confidence”.
I am satisfied in this case the public interest in ensuring the proceedings are conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidences. I have reached that view because: (a) MQ consents to the disclosure in circumstances where he is likely to have reasonable insight into the contents of the records. (b) MQ’s injury is particularised in the pleadings in broad terms as “psychiatric injury” and “psychological sequelae”. As a consequence, the class of material prospectively having probative value in assessing the extent of injury reasonably related to the conduct which is the subject of the claim, as opposed to injury related to other prospective causes, is similarly broad. In particular, there is a likelihood material containing disclosures concerning psychological difficulties confronting MQ before the subject abuse will affect the outcome in this case. (c) There is no evidence before me to indicate other information sources of similar or greater probative value that are not subject to a protected confidence constraint. (d) There are family members who may have had a relevant expectation of confidentiality in relation to some of the communications falling within the definition of a protected confidence. The presence of a likely expectation in that regard is not sufficient to outweigh the factors identified above. (e) I have had regard to the policy considerations underpinning the protected confidence legislation and the desirability of ensuring confidentiality of protected confidence material so as not to dissuade victims of sexual offences from seeking counselling or so as to otherwise diminish the value of the counselling they may receive. In this case there is sufficient risk, without the disclosure, of the proceedings not being conducted on a fair basis. Orders
I therefore make the following orders: (1) The parties have leave pursuant to ss 79D(2) and 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to disclose in and for the purposes of this proceeding the documents containing protected confidences produced in response to subpoenas dated 13 October 2025 issued to the following entities: (a) ACT Corrective Services, Justice and Community Safety Directorate. (b) Canberra Health Services. (2) The plaintiff has first access to inspect and copy documents produced to the Court by each of the entities referred to in order (1) for a period of three (3) days from the date of these orders, and the defendants thereafter have access to inspect and copy the documents.
I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.
Associate: Date:
MQ (a pseudonym)
ACT
[2026] ACTSC 149