//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] ACTSC 344
Supreme Court of the ACT
2026-09-10
Ainslie-Wallace AJ
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: Neit v ACT Citation: [2026] ACTSC 344 Hearing Date: On the papers Decision Date: 10 September 2026 Before: Ainslie-Wallace AJ Decision: (1) Pursuant to s 79D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and in relation to the documents produced by Rutledge Family Medical Centre: (a) The parties may inspect and disclose the protected confidences in the documents produced for the purposes of the proceedings. (b) The Plaintiff is granted first access to those documents such access to be had within 7 days of the making of these orders or such other reasonable period as the parties may agree and, thereafter access is granted to both parties. (c) The parties may uplift the documents for a period of 24 hours in order to make copies of them on the condition that the party who does so, within 48 hours of copying the documents, serve a scanned copy of the documents on the other party. (2) Costs of the Application to be costs in the cause. Catchwords: PRACTICE AND PROCEDURE – EVIDENCE – Protected confidences – application for leave to disclose and access – preliminary examination of documents by the court – discussion of mandatory considerations – documents have some probative value – disclosure and access granted Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79D, 79F, 79G, 79H Parties: Melissa Anne Neit (Plaintiff) ACT (Defendant) Representation: Counsel J Reid (Plaintiff) A McKay (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) ACT Government Solicitor (Defendant) File Number: SC 501 of 2025 Ainslie-Wallace AJ: Background
By a claim filed on 16 December 2025, Ms Melissa Anne Neit (the Plaintiff) seeks damages for injuries and disabilities said to have arisen as a result of the breach of duty of care by the Canberra Hospital while she was a patient following the birth of her child. The ACT (the Defendant) is the institution that owned and operated the Canberra Hospital and the provision of its services.
The Plaintiff’s claim contends, relevantly for the purposes of this application, that as a result of the Defendant’s negligence, she suffers from psychological and physical injuries and disabilities.
The Defendant has denied breach of duty of care and the claim for injury loss and damage.
On 27 March 2026, the Defendant issued a Non-Party Notice to Produce to the Rutledge Family Medical Practice. Documents were produced to the Defendant on 2 April 2026.
On 2 July 2026, the Defendant filed an application seeking: That the parties be granted the leave of the court, nunc pro tunc, pursuant to section 79H of the Evidence (Miscellaneous Provisions) Act 1991, to disclose in and for the purposes of the proceeding the protected confidences produced and disclosed by Rutledge Family Medical Centre.
On 24 July 2026, Muller J grated leave nunc pro tunc (now as if then) pursuant to ss 79D and 79F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) to issue notices for non-party production to the Rutledge Family Medical Centre and directed the Defendant to provide to the court the records produced by the Rutledge Family Medical Centre. His Honour adjourned so much of the Defendant’s application as related to leave to disclose the protected confidence in the documents to be determined at a later date following inspection of the documents in chambers.
The EMP Act creates a qualified public interest immunity against disclosure of confidential counselling communications between counsellors and their clients in relation to alleged sexual assault or family violence. Amongst other matters, the EMP Act requires leave of the court before a party can seek to compel the production of any document that records a “protected confidence” within the meaning of the Act. The Defendant had not sought leave but had compelled the production of documents which it was agreed contained documents which fall within the definition of “confidential counselling communications”, thus leave was granted nunc pro tunc pursuant to ss 79D and 79F of the EMP Act which sets out the threshold test for the grant of leave.
The threshold test for the granting of leave pursuant to s 79D is set out in s 79F and provides that the applicant must establish a legitimate forensic purpose for seeking to compel the production of the documents recording the protected confidence and must satisfy the court that there is an “arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceedings”.
As is apparent, Muller J was satisfied of both these matters at the time his Honour grated the Defendant leave, albeit nunc pro tunc, to compel disclosure of the documents by the Rutledge Family Medical Centre.
Leave to disclose a protected confidence for the purposes of the proceedings.
Section 79H provides for a second grant of leave, that is to disclose the protected confidence for the purposes of the proceeding and requires satisfaction that the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence.
In making that determination, a court must have regard to the matters set out in s 79H(3) so far as relevant. These are not criminal proceedings and thus s 79H(3)(a) does not apply, however the following considerations are relevant to the determination: … (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.
However, before coming to a consideration of the threshold imposed by s 79H, s 79G(1) provides that the court must conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.
I have examined the documents produced by the Rutledge Family Medical Centre and a record of that examination has been made but it will not be available for public access: s 79G(8).
Should leave be granted to the Defendant to disclose the protected confidence for the purposes of the proceedings?
Orders
I certify that the preceding [15] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: MG Malouf Date:
Neit
ACT