//
[2025] ACTSC 400
General information, not legal advice.
Supreme Court of the ACT
2025-09-05
Muller AJ
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
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: PH1 v Australian Capital Territory Citation: [2025] ACTSC 400 Hearing Date: 29 August 2025 Decision Date: 5 September 2025 Before: Muller AJ Decision: See [21] Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – application for leave to disclose produced protected confidence evidence – mandatory considerations in granting leave – evidence inspected by Court – plaintiff consents to disclosure – leave granted Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), Ch 4, Div 4.4.3, ss 79D, 79F, 79G, 79H, 79I Cases Cited: Smith (a pseudonym) v Australian Capital Territory [2025] ACTSC 345 Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 R v Chute (No 5) [2019] ACTSC 52 Parties: PH1 (Plaintiff) Australian Capital Territory (Defendant) Representation: Counsel K Nasser (Plaintiff) K Oleson (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) ACT Government Solicitor (Defendant) File Number: SC 418 of 2024 MULLER AJ: Background
The plaintiff asserts that she suffered personal injury in the course of and as a consequence of the provision of medical services to her at the Canberra Hospital, operated by the defendant. The primary injuries are alleged to be physical in nature, but the plaintiff also asserts the suffering of a consequential psychological injury and associated disabilities.
Prior to the commencement of this proceeding, but during the pre-court phase of information exchange, the defendant utilised the authority contained in the personal injury claim notification to gain access to various health records of the plaintiff. None of the records procured in that phase identified any protected confidences, and proceedings were subsequently commenced by the plaintiff on 10 December 2024. Following the commencement of proceedings, notices for non-party production were issued to a number of additional health service providers, including This is General Practice (TIGP) and Evo Psychology Pty Limited (Evo). In due course, the health records, including the TIGP records and the Evo records, were provided to at least some of the medical experts tasked with giving expert opinions in the context of the plaintiff’s medical negligence claim. Expert opinions have now been obtained and served by each of the parties.
The application that is before the Court was filed in circumstances where the parties have been alerted to the recording within the treatment notes of TIGP and Evo of material that may comprise protected confidences within the meaning of Div 4.4.3 of Ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA). If the records do contain protected confidences within the meaning of that Act there is a requirement for leave before a party can take any steps to deal with them. Any provision of leave in this case will necessarily be granted on a retroactive basis.
The evidence before me does not include any explanation of the failure to identify the protected confidences material prior to the supply of the treatment records to the medical experts. I accept that the records produced in the pre-court phase contained no indication that the TIGP and Evo records were likely to contain such disclosures. However, a careful review of those records at the time of their receipt ought to have alerted the parties to at least the risk that their disclosure was in breach of s 79D of the EMPA.
The application now before the Court seeks orders pursuant to ss 79D and 79H of the EMPA for the production and disclosure of protected confidence evidence produced and disclosed by Evo and TIGP. Although the application is made by the defendant, it is in effect a joint application as the plaintiff supports it and consents to the orders sought.
Legislative Framework
The background to the introduction of the protected confidences regime in the ACT was explained by McCallum CJ in Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 (Stanley) at [1]: As a result of the extensive work last century of the Model Criminal Code Officers Committee (a Committee of the Standing Committee of Attorneys-General), it is now commonplace in jurisdictions across Australia for there to be a statutory qualified public interest immunity against disclosure of confidential counselling communications between counsellors and their clients in respect of allegations of sexual assault or family violence. In the Territory, this immunity is provided for in div 4.4.3 of ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Among other protections, the provisions of div 4.4.3 impose a requirement for 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 legislation operates so as to prospectively require leave for relevant disclosures at three separate stages of the process. The stages of the process were set out in Stanley at [17]-[25] and summarised in Smith (a pseudonym) v Australian Capital Territory [2025] ACTSC 345 (Smith) at [6] as follows: 6․ The legislation is framed in such a way as to require leave to be sought at three stages of the disclosure process. In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 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: s 79H. (c) Leave to adduce evidence of or to tender the protected confidence in the proceedings: s 79D(3)(b).
In this application the parties seek to deal with the leave requirements at the first and second stages.
Meaning of protected confidence
The term is defined in s 79A of the EMPA. 79A Meaning of protected confidence—div 4.4.3 (1) For this division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed (the counselled person). (2) A counselling communication is a protected confidence even if–– (a) it is made before the happening, or alleged happening, of the acts constituting the sexual offence or family violence offence; or (b) it is not made in relation to–– (i) the sexual offence or any sexual offence; or (ii) a condition arising from the sexual offence or any sexual offence; or (iii) the family violence offence or any family violence offence; or (iv) a condition arising from the family violence offence or any family violence offence. (3) For this section, a counselling communication is a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality— (a) by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (b) to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (c) by the counselled person to a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (d) to the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (e) about the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor to— (i) the counselled person; or (ii) the counsellor; or (iii) another third party to whom subsection (4) applies; or (f) about the counselled person by a counsellor to someone else who has also been a counsellor for the counselled person; or (g) about the counselled person to a counsellor by someone else who has also been a counsellor for the counselled person. (4) For this section, in deciding whether a communication was made in circumstances that gave rise to a reasonable expectation of confidentiality, it does not matter that the communication was made in the presence of a third party, if the third party was present to assist or encourage communication between the counselled person and counsellor or otherwise assist the counselling process. Examples—third parties 1 a parent, partner, carer, spiritual adviser or other supportive person 2 a person present at the request of the counsellor to take notes of the counselling session (5) In this section: family violence offence includes alleged family violence offence. sexual offence includes alleged sexual offence.
There are clearly disclosures within the records of TIGP and Evo that meet the definition of protected confidences.
Legitimate forensic purpose
The Court cannot give leave pursuant to s 79D(3)(a) of the EMPA to require a person, whether by subpoena or otherwise, in or in relation to a proceeding, to produce a document recording a protected confidence, unless the applicant for leave establishes a legitimate forensic purpose for the request.
However, within s 79F(2), there is a two-part process; first, the identification of the legitimate forensic purpose, and secondly, that it is at least arguable that the evidence in relation to which leave is sought would materially assist the applicant’s case.
The legitimate forensic purpose that is relied upon here is that the plaintiff’s claim against the defendant includes a claim for psychological injury consequent upon the defendant’s negligent management of her medical treatment. The plaintiff's prior history includes psychological injury in the context of domestic violence. The extent, if any, to which the plaintiff’s prior psychological experience impacts on her current symptom complex, either in terms of creating a vulnerability for a worsened outcome from the subject injury, or in being partly causative of the current complaints, is sufficient to establish on its face a legitimate forensic purpose for requiring the production of the material. The second part of the test does not require the applicant to demonstrate that the protected confidence material will assist its case; only that it is at least arguable that it will do so. In my view it is at least arguable that an understanding of the impact of the prior history of domestic violence and its psychological sequelae would assist the applicant’s case. That is particularly so where the application is effectively a joint application by both parties, and in providing greater clarity as to the impact of the prior psychological history on the plaintiff’s present symptom complex the evidence is likely to assist either the plaintiff or the defendant.
Preliminary examination
Section 79G of the EMPA provides: 79G Preliminary examination of protected confidence evidence (1) If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given. (2) For the preliminary examination, the court may–– (a) require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or (b) require the counsellor or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity–– (i) to give the court written answers to any questions; or (ii) to attend the court for oral examination. (3) The court may also permit a written statement be made by the counselled person about the harm the counselled person is likely to suffer if leave is given. (4) The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination. (5) Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section. (6) The preliminary examination must be conducted–– (a) in the absence of the public and the jury (if any); and (b) in the absence of the parties to the proceeding and their lawyers, except to the extent otherwise decided by the court. (7) Evidence taken at the preliminary examination— (a) if the evidence is a statement taken under subsection (3)—must not be disclosed to the parties or their lawyers (other than the counselled person or their lawyer); or (b) in any other case—must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court. (8) A record of the preliminary examination must be made, but must not be made available for public access.
Mossop J summarised the requirements of the preliminary examination in R v Chute (No 5) [2019] ACTSC 52 at [22]: Section 79G requires the court to conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given. For that purpose s 79G(2) has two alternatives, the first is to require anyone who has custody or control of the document recording a protected confidence to produce the document to the court for inspection. The second is to require the counsellor or the principal or other representative of the entity on behalf of whom the counselling was provided to give the court written answers to questions or attend the court for oral examination. In the present case what was sought was the issue of subpoenas to obtain documents. The difficulty is that the application as formulated sought the issue subpoenas which did not adequately identify the respondent in a manner that would be consistent with s 79G(2)(a) or allow compliance with the subpoena to be enforced. I have undertaken a preliminary examination in accordance with the requirements of Section 79G.
I have undertaken a preliminary examination in accordance with the requirements of s 79G. Disclosure of protected confidences
The next part of the application concerns the orders sought by the applicant retroactively to disclose the protected confidences contained in the medical records of TIGP and Evo. As I indicated in Smith at [13], the mandatory considerations arising pursuant to s 79H(3) create a more rigid standard for the granting of leave than that arising under the first stage of the process in s 79F.
Section 79H(3) of the EMPA provides: (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.
Following consideration of the mandatory requirements set out above, I am satisfied that disclosure of the protected confidences contained in the material under consideration is appropriate and in the public interest. I have had particular regard to: (a) The plaintiff’s consent to disclosure of the protected confidences and her partner’s volunteering of them in communications with the hospital directly related to the subject claim. (b) The defendant’s denial of primary liability and denial of the claim as quantified. (c) The likelihood that the disclosure of the protected confidence will impact on the quantification of the plaintiff’s claim. Orders
I grant leave for the production and disclosure of protected confidence evidence in the material produced and disclosed by This is General Practice and Evo Psychology Pty Limited.
I make the following orders: (1) Pursuant to s 79D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), leave is granted nunc pro tunc to request production of documents from This is General Practice and Evo Psychology Pty Limited that requires disclosure of a protected confidence. (2) Pursuant to s 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) leave is granted nunc pro tunc to the parties to inspect the records produced by This is General Practice and Evo Psychology Pty Limited. (3) Pursuant to s 79D(3)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), leave is granted nunc pro tunc to each of the parties to rely upon the material produced by This is General Practice and Evo Psychology Pty Limited for the purposes of the proceeding, subject to any later ruling as to admissibility. (4) Until further order of the Court the publication of: (a) The name of the plaintiff; and (b) Information which discloses the identity of the plaintiff; and (c) Information from which the identity of the plaintiff might reasonably be inferred; and (d) Protected identity information about the plaintiff, within the meaning of s 79I of the Evidence (Miscellaneous Provisions) Act 1991 (ACT); is forbidden under s 79I of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). (5) Note that the term “publication” in order 4 has a corresponding meaning to the word “publish” in s 81J of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), being to communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information. (6) That, other than in accordance with an order of a judge of the Court, there shall be no public access to the Court file other than by the parties or their legal representatives. (7) That the plaintiff be referred to in the proceedings by the pseudonym “PH1”. (8) The costs of the application are to be costs in the cause.
I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: 5 September 2025
PH1
Australian Capital Territory [2025] ACTSC 400