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[2026] ACTSC 149
Supreme Court of the ACT
2026-05-19
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: NTD (a pseudonym) v ACT Citation: [2026] ACTSC 149 Hearing Date: 28 November 2025 Decision Date: 19 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 79A, 79D, 79H, 79F Cases Cited: Stanley (a pseudonym) v Commonwealth [2023] ACTSC 157; 378 FLR 210 Parties: NTD (a pseudonym) (Plaintiff) ACT (Defendant) Representation: Counsel M Faraj (Plaintiff) K Law-Jamieson (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) ACT Government Solicitor (Defendant) File Number: SC 51 of 2025 MULLER J:
Quamby is a youth detention centre operated by the ACT government. NTD was detained there when he was aged about 16. He says during the period of his detention he was sexually abused by an officer employed at the facility. In addition to alleging physical and sexual assault, NTD says he suffered a psychological injury as a result of the abuse. He claims damages from the Territory as the entity responsible for his protection whilst he was detained at Quamby.
NTD is now aged 38. Over the years, he has received extensive counselling and medical assistance in relation to his psychological difficulties. He has also been subject to extended periods of incarceration. There are voluminous records available in relation to his counselling, medical treatment and his time in custody. Unsurprisingly, those records contain some disclosures falling within the definition of “protected confidence” in the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act).
Orders were made previously giving permission to the Territory on a retroactive basis to issue subpoenas for production of documents to bodies believed to hold relevant records. Records have been produced by: (a) ACT Corrective Services, Justice and Community Safety Directorate. (b) Canberra Health Services. (c) ACT Education Directorate. (d) Ted Noffs Foundation.
The documents produced comprise in excess of 4,000 pages. The Territory now seeks leave pursuant to ss 79D and 79H of the EMP Act for the parties to inspect and disclose for the purposes of the proceedings the protected confidences produced.
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).
The parties in this matter are currently at the second stage.
What are the requirements for leave at the second stage?
Before granting leave, the court must conduct a preliminary examination of the protected confidence evidence. The legislation is silent as to the scope of the examination required. In circumstances where the next task required of the court is the consideration of public interest considerations before leave is given for the documents to be used in the proceedings, the examination must be sufficiently robust for the court to be able to properly weigh those public interest considerations.
I have conducted a review of the protected confidences material.
The particular task now required of me in a civil proceeding is set out in s 79H(1). Leave may be given for the disclosure of the protected confidence material only 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 confidence. In making that assessment there are a number of factors to which regard must be had listed in s 79H(3). They are mandatory considerations, although subs (4) makes clear they are not intended to limit the matters to which I may have regard: 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.
It is a matter of real substance where NTD, as the person by whom the protected confidence was made, consents to its disclosure.
Is it appropriate to give leave pursuant to s 79H(1)(a) in this case?
In relation to some of the documents provided for my review, there is no requirement for leave as the documents do not on their face meet the definition of a “counselling communication” in s 79A. They are the documents produced by the ACT Education Directorate. Documents produced by ACT Corrective Services, Justice and Community Safety Directorate, Canberra Health Services and Ted Noffs Foundation all contain communications that are in the nature of a counselling communication and thus fall within the definition of a protected confidence.
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 in this case. I have reached that view for the following reasons: (a) NTD’s statement of claim is pleaded broadly in terms of injury, referring simply to “psychiatric injury; and psychological sequelae”. The broad pleading of the injury results in a wide range of material having probative value in assessing the psychological injury or extent of injury reasonably related to the subject abuse, as opposed to other prospective causes. As a consequence, there is a likelihood material containing disclosures of psychological difficulties confronting NTD during his life before the subject abuse will affect the outcome in the case. (b) There is nothing before me to indicate other evidence is available of similar or greater probative value that is not subject to a protected confidence constraint. (c) The only person with a relevant expectation of confidentiality for the protected confidence is NTD and he consents to the disclosure. (d) I have had regard to the policy considerations underpinning the protected confidence legislation and the desirability of ensuring confidentiality of such communications so as not to dissuade victims of sexual offences from seeking counselling or otherwise to diminish the value of the counselling they may receive. However, 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. (c) Ted Noffs Foundation. (2) Leave is not required in relation to documents produced by the ACT Education Directorate. (3) The plaintiff has first access to inspect and copy documents produced to the court by each of the entities referred to in orders (1) and (2), 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 thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.
Associate: Date:
NTD (a pseudonym)
ACT