Plaintiff v Defendants

Supreme Court of Victoria|2016-10-26|Before: Daly AsJ

[2016] VSC 622 Revised 7 November 2016

PRACTICE AND PROCEDURE - Claim in relation to alleged sexual offences committed at a school - Application by defendants for leave to issue a subpoena under s 33C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) ('EMPA') to compel disclosure of a treating psychologist's file - Substantial disclosure of psychologist's reports and records to the defendants as part of a consensual prelitigation claims process.

EVIDENCE - Whether disclosure of substantial proposition of psychologist's notes and reports is inconsistent with maintenance of confidentiality in the remaining confidential communications in psychologist's file - Whether disclosure amounts to 'consent' under s 32E(1)(a) of the EMPA - Reports and records provided as part of an agreed claims process - Balance of records record communications for a therapeutic purpose - No waiver.

EVIDENCE - Requirements of s 32D of the EMPA - Whether documents 'will have substantial probative value to a fact in issue in the proceeding' - Threshold test - James Baker (a pseudonym) v R [2015] 323 applied - Whether evidence can be obtained by any other means - Public interest considerations - Limited disclosure ordered.

Note: on 3 November 2016 the Court made orders on the application of the plaintiff, permitting the publication of this judgment (and a report or summary of this judgment) pursuant to s 4(1C) of the Judicial Proceedings Reports Act 1958 (Vic).

1 The plaintiff in this proceeding, who is now in his fifties, was in the early 1970s a student at a school operated by the first defendant, the Burke Hall campus of Xavier College. In his statement of claim, he alleged that one priest working at Burke Hall physically assaulted him, and another physically and sexually assaulted him. He suffers from a number of debilitating physical and psychiatric disabilities, which he claims were caused by the assaults, and indeed, he has been unwell for much of his adult life, which has affected his education, his ability to earn income, and his family and other relationships. He claims damages for economic and noneconomic loss, and aggravated and exemplary damages. In their defence, the defendants do not admit the assaults, and the alleged perpetrators are deceased. They do not plead a Limitations of Actions Act defence. Rather, it is clear from the evidence and the submissions of the parties advanced during the course of this application, particularly that of the defendants, that the question of causation will be front and central at any trial of this proceeding.

2 In particular, the defendants assert that the following matters are in issue in this proceeding;

(a) whether the alleged assaults at Burke Hall ('Burke Hall abuse') actually occurred;

(b) whether there are other causes or potential causes of the plaintiff's condition, such as assaults by other parties, or injuries suffered in an incident at the plaintiff's rental premises, for which the plaintiff claimed damages in a proceeding in the County Court ('County Court proceeding'), which was finalised in July 2012;

(c) the disentanglement of any injuries suffered by the plaintiff as a result of the Burke Hall abuse from other injuries; and

3 The current application concerns a summons issued by the defendants on 26 September 2016, seeking leave pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) ('EMPA') to file and serve a Summons for Production of the file held by Dr Geoff Pearce, a psychologist based in Bundaberg, Queensland, relating to his consultations and treatment of the plaintiff from May 2009 to date. Dr Pearce was served with the summons, and appeared at the hearing of the application, represented by senior counsel acting pro bono, for which the Court is grateful. While the summons is cast in broad terms, following correspondence between the parties, the documents which were the focus of the defendants' submissions fall into four categories:

(a) session notes made by Dr Pearce during the period 31 October 2012 to 19 July 2013 ('Later Notes');

(b) documents held by Dr Pearce which post-date the Later Notes;

(c) emails Dr Pearce exchanged with the plaintiff's former solicitor; and

(d) the original audio tapes from which the transcripts of sessions between the plaintiff and Dr Pearce which are included at exhibit 'PAB-1' to the affidavit of Peter Anthony Brown sworn on 26 September 2016 ('audio tapes').

4 It appears that there are unlikely to be any documents which fall within category (b) above. Further, it appears from the correspondence between the parties that, to the extent that there are session notes which pre-date the Later Notes which have not already been produced, the plaintiff does not object to those notes being produced. A process has been put in place to ensure that both parties will have access to documents which predate the Later Notes, subject to any claims for legal professional privilege. The plaintiff has reserved his position in respect of the audio tapes.

5 Section 32C(1) of the EMPA provides as follows:

(1) In a legal proceeding -

(a) a party cannot seek to compel another party to produce a document containing a confidential communication;

(b) a document is not to be produced if it would disclose a confidential communication;

(c) evidence is not to be adduced if it would disclose -

(i) a confidential communication; or

(ii) the contents of a document recording a confidential communication -

unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention in accordance with subsection (2).

6 Section 32B of the EMPA defines a 'confidential communication' to be

a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.

7 It is common ground that the Later Notes and the audio tapes are, in the absence of any waiver on the part of the plaintiff, documents recording confidential communications, such as to engage the operation of s 32C of the EMPA.

8 Prior to turning to the submissions of the parties, it is necessary to set out a brief chronology of the relevant events, as follows:[1]

(a) in May 2009, the plaintiff commenced counselling sessions with Dr Pearce, discussing a range of issues, including family relationships, pain management, and his problems with panic attacks, anxiety and depression;

(b) on 17 July 2012, after watching a television program, the plaintiff had his first 'realisation' of the abuse he suffered at Burke Hall;

(c) shortly after that time, the plaintiff contacted Mr John Ellis, then of David Begg & Associates in Sydney ('plaintiff's former solicitor'), and resumed his sessions with Dr Pearce;

(d) on 30 August 2012, the plaintiff's former solicitor wrote to Fr Michael Head of the first defendant, seeking, among other things, to initiate discussion towards a timely and just resolution agreement to meet the costs of the plaintiff receiving treatment and support from Dr Pearce, and for the first defendant to meet the costs of an agreed joint expert to conduct an appropriate psychiatric assessment of the plaintiff in advance of a proposed mediation ('claims process');

(e) on 18 September 2012, the former solicitors for the first defendant largely agreed to the process proposed by the plaintiff's former solicitor (with some caveats), including the appointment of Dr Sue Brann to conduct the psychiatric assessment;

(f) on 17 October 2012, the plaintiff's former solicitor sent Dr Brann a letter of instruction, which, among other things, included an extract of a 'timeline' prepared by the plaintiff and Dr Pearce, a report of Dr Pearce's assessment of the plaintiff dated 12 October 2012 ('12 October report'), which included Dr Pearce's clinical observations and results of some psychological tests undertaken by the plaintiff, a letter from Dr Pearce dated 12 October 2012 which enclosed typed transcripts of some of the plaintiff's sessions with Dr Pearce, and medical records from the plaintiff's current and former general practitioners. The letter stated:

Mr Skarbek has more recently consulted with Dr Pearce, psychologist at Bundaberg for 8 sessions between 11 August 2012 and 6 October 2012. The last 4 sessions were spent largely collecting the attached material regarding Mr Skarbek's life.

(g) Dr Brann carried out her assessment on 23 October 2012, and produced her first report on 4 December 2012. She diagnosed the plaintiff as suffering from several serious and chronic psychiatric and psychological conditions;

(h) in the meantime, on 19 November 2012, the plaintiff's former solicitor wrote to the first defendant's former solicitor stating:

Following the appointment with Dr Brann in late October, we were notified that Mr Skarbek experienced a considerable escalation in his levels of distress as more memories of the abuse surfaced and he experienced what were described by Dr Pearce as severe dissociative symptoms with a high risk of self-harm;

(i) on 20 December 2012, the plaintiff's former solicitor wrote to the first defendant's former solicitors providing an extract of a letter from Dr Pearce regarding Mr Skarbek's current state of health, the nature of the treatment undertaken, and asserting that it would be unrealistic to scale back the level of treatment and support provided to the plaintiff by Dr Pearce;

(j) on 7 January 2013, Dr Pearce provided a further detailed report ('7 January report'), which was subsequently provided to the first defendant's former solicitors by the plaintiff's former solicitor. The 7 January report provided further information regarding the memories recovered by the plaintiff following the 12 October report, the physical injuries reported by the plaintiff which were said to be connected with the Burke Hall abuse, the plaintiff's current pressing concerns, Dr Pearce's role in the plaintiff's treatment, and his observations of the plaintiff's psychological state;

(k) in March 2013, the first defendant's solicitors requested that Dr Pearce provide copies of his treatment records for the period after the 12 October report. Dr Pearce refused to do so;

(l) on 15 May 2013, Dr Brann provided a further report to the plaintiff's former solicitor in response to specific questions from the plaintiff's former solicitor;

(m) in April and May 2013, both Dr Pearce and Dr Brann wrote to the plaintiff's former solicitor explaining their opinion that Dr Pearce's notes should not be provided to the first defendant's former solicitors. On 17 April 2013, Dr Pearce wrote at some length to the plaintiff's former solicitor expressing his reluctance to provide the first defendant's former solicitors with copies of his notes, because he did not trust them not to disclose the contents of the notes, and because he believed that the release of the notes would be psychologically damaging to the plaintiff. On 8 May 2013, Dr Brann wrote, among other things, that:

In my opinion it would be absolutely NOT in your client's interest that the notes be made available. I assume that if he had known this would happen he would not have entered into therapy in the first place;

(n) in the meantime, the parties' former solicitors corresponded regarding the first defendant's funding of the services provided by Dr Pearce to the plaintiff, the first defendant's requirement that the plaintiff be available for a further medico-legal assessment, and the first defendant's demands that the plaintiff produce all of Dr Pearce's treatment notes. The parties reached an impasse, no mediation ever took place, and the first defendant ceased funding Dr Pearce's treatment of the plaintiff in June 2013; and

(o) this proceeding was issued on 21 December 2015.

9 As noted above, the defendants need the leave of the Court to compel Dr Pearce to produce the Later Notes and the audio tapes. Section 32C of the EMPA, which is reproduced in paragraph 5 above, is one provision of Division 2A of Part II of the EMPA, which provides a specific and stand-alone regime governing the circumstances under which a party to a legal proceeding can compel a party who is or is alleged to be a victim of sexual assault to disclose evidence of communications with their treating medical practitioner or counsellor. Apart from s 32C, and the definition of 'confidential communication' referred to above, the other relevant provisions of this division are reproduced below.

10 Section 32AB of the EMPA provides as follows:

32AB Guiding principles

It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that -

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under-reported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.

11 In s 32B of the EMPA, 'harm' is defined as including

actual physical bodily harm, financial loss, stress, shock, damage to reputation and emotional or psychological harm (such as shame, humiliation or fear).

12 Section 32D is headed 'Restriction on granting leave', and provides as follows:

(1) A court must not grant leave to compel the production of, or to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that -

(a) the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and

(b) other evidence of similar of greater probative value concerning the matters to which the protected evidence relates is not available; and

(c) the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.

(2) Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account -

(a) the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;

(b) the extent to which the protected evidence is necessary to allow the accused to make a full defence;

(c) the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;

(d) whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;

(e) whether the protected confider objects to the disclosure of the protected evidence;

(f) the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.

13 Section 32E(1) of the EMPA provides that:

This division does not prevent the production or adducing of evidence

(a) with the consent of the protected confider or, if he or she is under 14 years of age, with the consent of any person whom the court regards as being an appropriate person to give that consent;

...

(c) of a communication made, or the contents of a document prepared, for the purpose of a legal proceeding arising from the commission or alleged commission of the sexual offence.

14 Finally, s 32F of the EMPA prescribes, without limitation, a number of measures that a court may adopt to limit the harm, or the extent of the harm likely to be caused by the disclosure of protected evidence.

15 Both parties relied upon extensive affidavits sworn by their solicitors in support of their respective positions in this application. Dr Pearce also filed and served an affidavit in opposition to the defendants' application. The thrust of the evidence is summarised in the following paragraphs.

16 In his affidavit sworn on 26 September 2016 in support of the defendant's application Mr Peter Anthony Brown deposed, in summary, as follows:

(a) he deposed to the allegations made by the plaintiff in his statement of claim;

(b) he deposed to the plaintiff being referred to Dr Pearce by his general practitioner in May 2009, and as to the contents of a report sent by Dr Pearce to the general practitioner in September 2009;

(c) he exhibited a large number of documents (159 pages in total), described as 'Bundle of material comprising the reports and records kept by Dr Pearce discovered by the plaintiff in this proceeding'. While there is no direct evidence on this point, this bundle is likely to include documents and reports produced by the plaintiff's former solicitor to the first defendant's former solicitors and Dr Brann in October 2012;

(d) he commented upon the content of the reports, including the plaintiff's preexisting abuse history, his psychiatric treatment, and a personal injury proceeding brought by the plaintiff against his sister-in-law (and landlord), which was dismissed on 11 July 2012;

(e) he noted the information provided by the plaintiff to Dr Brann regarding his first realisation of the alleged abuse at Burke Hall on 17 July 2012;

(f) he deposed as to the correspondence between him and the plaintiff's solicitors regarding disclosure of Dr Pearce's records between 16 March 2016 and 19 August 2016;

(g) he identified which of Dr Pearce's records had been discovered in the plaintiff's affidavit of documents of 22 July 2016, and apparent gaps in the discovery;

(h) he deposed that the defendants wish to arrange a medico-legal examination and assessment of the plaintiff by Dr Timothy Entwisle, a consultant psychiatrist, who has informed him that he would need to see the plaintiff's complete psychiatric and psychological history, including full notes of his treating psychologist, in order to properly conduct his assessment; and

(i) at paragraph 40 of his affidavit, Mr Brown deposed as follows:

(i) the plaintiff has voluntarily disclosed the majority of Dr Pearce's file and has relied upon it in the formulation and pleading of his case against the defendants;

(ii) production of the entire file is necessary to allow my clients to make a full defence of the claim;

(iii) the plaintiff's solicitors have been unable to confirm whether Dr Pearce has provided all relevant notes and documents in his possession for discovery by the plaintiff; and

(iv) it is evident from the material received to date that Dr Pearce has selectively released material relating to his consultations with the plaintiff.

17 The plaintiff's solicitor, Mr David Ian Anthony Jackson, filed an extensive affidavit in response, much of which was derived from his instructions from the plaintiff and members of the plaintiff's family. He deposed, in summary, as follows:

(a) Dr Pearce's initial treatment of the plaintiff between June 2009 and October 2011;

(b) the plaintiff's first realisation of the Burke Hall abuse on 17 July 2012, and his subsequent engagement of the plaintiff's former solicitor and his resumption of sessions with Dr Pearce;

(c) he exhibited the correspondence between the plaintiff's former solicitor and the first defendant's former solicitor regarding the claim process;

(d) he believed that the plaintiff's former solicitor requested the plaintiff and Dr Pearce to create a document summarising the childhood abuse suffered by the plaintiff, for the purpose of providing that document to Dr Brann;

(e) in the days following Dr Brann's assessment, the plaintiff experienced acute and severe psychological distress and trauma, which he attributed to the shock of receiving the indicative diagnosis of a serious psychiatric disorder, Dr Brann discussed with him during the appointment, and the process of having to recall and describe his childhood abuse during the appointment. As a result of this distress, on 31 October 2012 the plaintiff started having what Mr Jackson described as 'remedial sessions' with Dr Pearce on a daily basis;

(f) he exhibited correspondence between the plaintiff's former solicitor and the first defendant's former solicitors seeking funding from the first defendant for the remedial sessions;

(g) the plaintiff believed, at the time the remedial sessions commenced, that the sessions were solely for remedial and therapeutic purposes, and had no connection to the claims process. He believed that the contents of these sessions, and any notes or records of them, were strictly confidential;

(h) he commented upon the observations made by Dr Pearce in his reports regarding the plaintiff's psychological state and treatment needs; and

(i) he exhibited correspondence between the plaintiff's former solicitor and the first defendant's former solicitor regarding the funding of the remedial sessions, which ceased in June 2013.

18 In relation to the records held or likely to be held by Dr Pearce, Mr Jackson deposed as follows:

(a) the plaintiff has discovered in this proceeding all documents comprising notes, records or reports in relation to the plaintiff save for:

(i) emails between Dr Pearce and the defendants and their legal representatives (on the assumption that the defendants already had these documents);

(ii) emails between Dr Pearce, the plaintiff, and the plaintiff's former solicitor, on the basis that they were either subject to a claim by the plaintiff for legal professional privilege, fell within the ambit of s 32B of the EMPA, or were not relevant to the issues in the proceeding; and

(iii) the Later Notes, on the basis that they are protected from production by reason of the provisions of Division 2A of Part II of the EMPA, or record communications made for the dominant purpose of the plaintiff seeking or receiving legal advice; and

(b) he commented upon other categories of documents sought by the defendant.

19 As to the question of the likely probative value of the Later Notes, Mr Jackson has deposed to the volume and nature of the documents already provided by the plaintiff and the defendant, and the volume of documents produced by Norwicki Carbone, the solicitors for the plaintiff in the County Court proceeding, pursuant to a subpoena issued by the defendants, for which no claim for privilege has been maintained by the plaintiff. He noted that in the affidavit sworn in support of the summons, Mr Brown did not state why Dr Entwisle would be unable to carry out the assessment in the absence of the Later Notes.

20 Mr Jackson deposed as to the exchange of correspondence between the plaintiff's former solicitor and the first defendant's former solicitor regarding the first defendant's demand for production of the Later Notes. He deposed that the plaintiff was first told about these demands in or about March 2013. He went on to depose as follows:

I am informed by the plaintiff and believe that, if he had known on or before 31 October 2012 that the defendants or their representatives would seek access to the contents of the Remedial Sessions (sic), including any notes thereof, he would not have agreed to attend these sessions or he would have asked Dr Pearce not to make any records of them. Further, if the plaintiff had known of this possibility at any time before 21 May 2013, he would have discontinued the sessions or asked Dr Pearce not to make any notes or records of them.

21 Mr Jackson deposed as to the emails he received from Dr Pearce and Dr Brown as to the potential harm to the plaintiff if the Later Notes were disclosed to the first defendant and/or its former solicitors. Further, at paragraph 46 of his affidavit, Mr Jackson deposed as follows:

Some of the Later Notes documents refer to the plaintiff's immediate family and his relationships with them. Those documents include information that is very private and sensitive. For example, the documents refer to:

(a) the plaintiff's worries and distress about his children;

(b) the emotional states of the plaintiff's children;

(c) arguments between the plaintiff and his family members;

(d) the plaintiff's intimate sexual relationship with his de facto partner;

(e) the plaintiff's concerns about his relationship with his mother;

(f) medical conditions and treatments of the plaintiff's family members.

22 Mr Jackson also exhibited a statement made by the plaintiff's partner on 11 October 2016 regarding her concerns regarding the ramifications for her and for her daughters if the defendants were provided with the Later Notes. Finally, Mr Jackson deposed as follows:

I am informed by the plaintiff and believe that neither he nor any of his family members (one of whom is still a minor) consents to the dissemination of the Later Notes or the information therein.

23 In a further affidavit sworn on 13 October 2016, Mr Brown provided a detailed response to the affidavit sworn by Mr Jackson in opposition to the application. Among other things, Mr Brown deposed, in summary, as follows:

(a) he noted that during the period in which the plaintiff saw Dr Pearce prior to the plaintiff's realisation of the Burke Hall abuse, the treatment sessions dealt with the plaintiff's pre-existing history of sexual abuse, and the personal injury claim brought by the plaintiff in the County Court proceeding;

(b) while Mr Jackson stated that the defendants have been provided with all of the documents in the plaintiff's possession which comprise notes, records, or reports of Dr Pearce, the evidence suggests that there are records on Dr Pearce's file which have not been provided to the plaintiff or his solicitors;

(c) owing to the age of the matter, there may be emails passing between Dr Pearce and the first defendant's former solicitors which have not been retained by the defendants;

(d) Dr Pearce was retained to produce two medico-legal reports on behalf of the plaintiff, which were submitted to the first defendant's former solicitors in support of his claim. As such, any privilege in emails exchanged between Dr Pearce and the plaintiff and/or the plaintiff's former solicitor has been waived by the plaintiff by reason of the disclosure of these reports;

(e) he identified particular sessions between Dr Pearce and the plaintiff prior to 31 October 2012 for which notes have not been discovered by the plaintiff;

(f) in response to the allegation that there is a risk that the plaintiff will suffer serious harm if the documents sought by the defendants were provided, Mr Brown noted that the plaintiff has not sought to anonymise his name or make any application to suppress details of this proceeding, and has in fact on several occasions sought to publicise his allegations and the commencement of this proceeding. Mr Brown exhibited a number of articles in which the plaintiff's name is mentioned published in mainstream media outlets during the course of 2015 ('news articles');

(g) in relation to the concerns pressed by Mr Jackson in relation to the references in the Later Notes to the plaintiff's immediate family and the plaintiff's relationships with them, detailed information in relation to these matters have been provided in the reports of Dr Pearce and Dr Brann, as well as the statements of the plaintiff's wife, mother, and eldest daughter referred to in Dr Brann's report, which were provided to the first defendant's former solicitors by the plaintiff's former solicitor on 23 October 2012. In the statement made by the plaintiff's mother, she confirmed that the plaintiff first attended a child psychiatrist at the age of nine, while attending Sacred Heart School in Kew; and

(h) in response to the statement by Mr Jackson that the Later Notes do not contain any 'relevant reference to the plaintiff's back injuries, having been caused by anything other than the abuse he suffered at Burke Hall', Mr Brown deposed as follows:

A reference to any cause of Mr Skarbek's injuries is necessarily relevant to causation and the facts in issue. Mr Jackson does not say that the notes contain no reference at all to Mr Skarbek's injuries or their origin.

24 Mr Jackson filed and served a further affidavit in reply on 14 October 2016. He deposed, in summary, as follows:

(a) the notes of the sessions Dr Pearce had with the plaintiff between June 2009 and October 2011 make two references to the sexual abuse suffered by the plaintiff prior to the Burke Hall abuse, and two references to the personal injury claim brought by the plaintiff in the County Court proceeding;

(b) he has not seen some of the records sought by the defendants and does not know whether they exist;

(c) he believes that, based upon his review of the documents and his discussions with the plaintiff and Dr Pearce, many of the emails exchanged between Dr Pearce, the plaintiff, and the plaintiff's former solicitors concerned, wholly or mainly, the claims process and its effect on the plaintiff's health and wellbeing, and he does not believe any privilege over such emails has been waived;

(d) he noted that the news articles do not mention or refer to the plaintiff's confidential communications with Dr Pearce or other medical practitioners and counsellors, the plaintiff's medical, psychological or psychiatric conditions, or any details about the plaintiff's partner or daughters;

(e) neither he or the plaintiff had any contact with the author of the only news article which referred to the commencement of this proceeding;

(f) he has been informed by the plaintiff that neither his mother, partner or daughter knew that the statements they prepared were to be provided to the defendants or their representatives;

(g) he has been informed by the plaintiff that the timeline document he prepared and which was provided to Dr Pearce and Dr Brann was incomplete and inaccurate in some respects; and

(h) he was aware from his review of the Later Notes that only approximately 26 of the more than 250 documents constituting the Later Notes refers to any matters concerning the cause of the plaintiff's injuries.

25 Also, on 14 October 2016, another solicitor employed by solicitors for the the defendants, Ms Fiona Nosworthy, swore an affidavit which exhibited emails between Mr Brown and Dr Entwisle on 13 October 2016. Mr Brown's email to Dr Entwisle states as follows:

I confirm that Mr Skarbek has an appointment to see you for assessment at 2:00pm on 28 November 2016.

I have issued an application to secure production of Dr Pearce's file and notes. In doing so, I have referred to our telephone conversation on 6 July 2016 as follows:

The defendants wish to arrange a medico-legal examination and assessment of the plaintiff by a forensic psychiatrist pursuant to Rule 33. I spoke with Dr Timothy Entwisle on 6 July 2016. Dr Entwisle is a Consultant Psychiatrist. Dr Entwisle informed me that before conducting his assessment, he would need to see the plaintiff's complete psychiatric and psychological history in order to properly assess the trajectory of the plaintiff's illness. Dr Entwisle further informed me that Mr Skarbek's family history and circumstances are an important consideration and he would need to see the full notes of Mr Skarbek's treating psychologist in order to properly conduct his assessment.

Mr Skarbek's solicitors have responded yesterday as follows:

Mr Brown does not state why Dr Entwisle would be unable to carry out the assessment in the absence of the Later Notes.

The Later Notes are defined by the plaintiff as the notes taken by Dr Pearce during the sessions conducted during the period between 31 October 2012 and 19 July 2013 during which it is said that Dr Pearce undertook 'remedial sessions' with Mr Skarbek as a consequence of him being 'in a distressed state' and 'having difficulties in coming to terms with what was said/explained to him by Dr Brann'.

Can you please provide me with your explanation as to why the Later Notes are necessary for your assessment? Mr Skarbek's solicitor states that these notes include information that is very private and sensitive involving his partner, children and other family members.

Our application is listed for hearing tomorrow so I would be most grateful if you could respond by return email so that I can advise the court of your position.

Please feel free to call me to discuss should you have any questions.

A developmental history including history of childhood, family history and experiences positive and negative, educational history, personal and family psychiatric history are all necessary and vital elements of the psychiatric assessment process and are all required to reach an accurate balanced and comprehensive diagnostic formulation as set out in RANZCP guidelines.

27 Dr Entwisle later added the following to his response to Mr Brown's email:

The notes obtained by the treating psychologist in respect to Mr Skarbek's history are likely to contain a full and frank account of his developmental experiences which are not necessarily able to be obtained in a one off forensic interview and for that reason are routinely sought as part of the process and subpoenaed if necessary for that reason.

28 Finally, Dr Pearce himself swore an affidavit on 13 October 2016. He deposed, in summary, as follows:[2]

(a) in August 2012 he was informed by the plaintiff's former solicitors that there had been an agreement reached with the defendants' solicitors to the effect that it was important for the plaintiff's experiences to be recorded by a mental health professional for assessment by a jointly appointed psychiatrist. Both he and the plaintiff were under the impression that the information collected would only be perused by Dr Brann;

(b) as a matter of expediency, he, as the treating psychologist, was given the task of interviewing the plaintiff and recording his experiences, and it was explained to him that Dr Brann's assessment was important for the forthcoming mediation between the parties;

(c) after the plaintiff was diagnosed with a serious psychiatric condition by Dr Brann, his role was to provide supportive counselling rather than any form of therapeutic intervention;

(d) he deposed as to the disputes between him and the former solicitors for the first defendant regarding the provision of his notes and the payment of his accounts;

(e) his objection to the production of his file is based upon the guidelines of the Australian Psychological Society for 'Managing legal requests for client files, subpoenas, and third party requests for psychological reports', and in particular, the following guidelines concerning whether a psychologist should disclose client records:

(i) The documents requested are sensitive personal health records and you reasonably believe that giving access would pose a serious threat to the life, health or safety of any individual (mental or physical harm), or to public health or public safety;

(ii) Therapeutic relationship - the effect of the request for information on treatment may be to undermine the relationship of trust between you and the client and could cause long-term irreparable harm to the wellbeing of the client and the therapeutic relationship, possibly not just with you as the treating psychologist but also with psychologists in general;

(iii) Privacy of other individuals - if the information in a client's file identifies a third party and giving access would have an unreasonable impact upon the privacy of the other individuals and is in conflict with your obligations to protect that information under privacy laws; and

(iv) Highly skilled profession - psychology is a highly skilled profession and the interpretation of psychological information contained in the file/documents without explanation of the context in which they are written is unlikely to assist with the matter/request and has the potential to have adverse impacts.

29 Dr Pearce provided some reasonably extensive commentary under the headings above, but for present purposes, the key points are as follows:

(a) the importance (as conveyed to him by Dr Brann) of the plaintiff not becoming aware of all of the contents of the taped sessions, and in particular, that the plaintiff should not hear the audio tapes, as their contents have the potential to either retraumatise him and/or create new traumas;

(b) his concern that the transcript of the recording was exhibited to an affidavit filed in support of the application. He deposed as follows:

The transcript was never intended for general circulation. I am concerned that no respect has been shown for the sensitivity of the information in the transcript. I am concerned that no respect will be shown to the information contained in the documents the subject of the summons and that Mr Skarbek will be psychologically injured as a result.

(c) both he and the plaintiff believed that the information provided by the plaintiff to Dr Pearce was for the purpose of Dr Brann providing a diagnosis, and that noone else would ever peruse those file notes. The plaintiff told him that if he had known that the first defendant would have access to the file notes he would never have engaged in the process;

(d) the sensitivity and severity of the plaintiff's condition;

(e) his strongly held view that the plaintiff should not be provided with the audio tapes or the transcripts; and

(f) he would be prepared to listen to the audio tapes in the company of another person to check the veracity of the transcripts, but

I cannot by reason of the risks associated with the plaintiff hearing the tape permit it to leave my custody and control as hearing it risks gross consequences for the plaintiff.

30 The following conclusions can be drawn from the evidence, including the reports and medical records annexed to the affidavits:

(a) prior to July 2012, the plaintiff had suffered poor mental and physical health over a long period of time, with a range of possible causes, including child sexual abuse, and an injury suffered at a rental property;

(b) on 17 July 2012, after his realisation of the Burke Hall abuse, the plaintiff resumed his sessions with Dr Pearce, and contacted a solicitor;

(c) the plaintiff's former solicitor quite promptly notified the first defendant of the plaintiff's complaint, and suggested that the first defendant agree to a process with a view to securing funding for the plaintiff's treatment and support by Dr Pearce, and to reaching an early resolution of the plaintiff's claim, with a mediation to take place after Dr Brann provided her report;[3]

(d) to facilitate the claims process, a pragmatic approach to the gathering of the necessary evidence to brief Dr Brann was adopted, with Dr Pearce to hold a number of information gathering sessions with the plaintiff. This information gathering process included the provision of statements by the plaintiff's partner, mother, and elder daughter, the latter being a young adult;

(e) the uncontested evidence is that neither the plaintiff, his family members, or Dr Pearce was aware that the reports, records, and statements produced by them would be seen by any person other than Dr Brann;

(f) after Dr Brann's diagnosis in October 2012, the plaintiff's mental health deteriorated rapidly, and he was receiving daily treatment and support from Dr Pearce. In the meantime, the consensual nature of the process broke down, in that the first defendant's solicitor was resistant to funding the plaintiff's treatment, at least at the level considered appropriate by the plaintiff's former solicitor and Dr Pearce, and began to demand that Dr Pearce provide the Later Notes. The plaintiff's former solicitor resisted production of the Later Notes on the basis that Dr Pearce and Dr Brann opined that disclosure of the Later Notes would cause harm to the plaintiff; and

(g) no mediation was held, this proceeding was issued, and in early 2016 the defendants' solicitors revived their call for the Later Notes. The plaintiff discovered all records in its possession which pre-dated the Later Notes, which was presumably an incomplete subset of Dr Pearce's file, and resisted production of other documents such as the Later Notes, and emails between the plaintiff, the plaintiff's former solicitor and Dr Pearce on the grounds of legal professional privilege; and

(h) the plaintiff does not object to the defendants' inspecting documents on Dr Pearce's file which pre-date the Later Notes for the purpose of filling any gaps in the plaintiff's discovery. The plaintiff has reserved his position on the audio tapes, but Dr Pearce strenuously resists production of the audio tapes, for fear that they might fall into the wrong hands.

31 The defendants submit that, notwithstanding the fact that the defendants have issued a summons seeking leave under s 32C of the EMPA, the terms of ss 32C and 32D of the EMPA have not been engaged, as the conduct of the plaintiff has waived any right to confidentiality in the contents of Dr Pearce's entire file, such that the documents in the file lose their status as 'confidential communications' within the meaning of s 32B of the EMPA.

32 The conduct of the plaintiff relied upon by the defendants as said to amount to waiver is as follows:

(a) by issuing this proceeding, the plaintiff has brought allegations of abuse into this proceeding, and as the Later Notes and other records bear directly on the circumstances of the allegations, Dr Pearce's full file must be produced;

(b) any privilege in the whole of Dr Pearce's file has been waived by the use of some of Dr Pearce's notes and reports under either common law principles of waiver or under ss 122 and/or 126 of the Evidence Act 2008 (Vic). That is, by disclosing part of Dr Pearce's file, the plaintiff has acted inconsistently with the maintenance of confidentiality in the balance of the file;

(c) as the plaintiff's solicitors have served the 12 October and 7 January reports, which were prepared by Dr Pearce, any documents held by Dr Pearce that relate in any way to those reports and their preparation must be disclosed; and

(d) while this is not strictly speaking a question of waiver, the defendants also submit that the Later Notes fall within the terms of s 32E(1)(c) of the EMPA, as they were prepared for the purpose of legal proceedings arising from the commission or alleged commission of a sexual offence.

33 It appears that there has been no direct judicial consideration of how the principles of issue waiver and disclosure waiver apply to confidential communications within the meaning of s 33B of the EMPA. The defendants rely upon the line of authority which has considered the question of waiver of what is commonly described as the 'medical privilege' conferred by s 28 of the EMPA, culminating in the decision of Judd J in Elliott v Tippett.[4] In that case, while Judd J queried whether the prohibition in s 28 of the EMPA conferred a 'privilege' upon a client of a medical practitioner, he proceeded to consider first, whether by issuing a proceeding against a medical practitioner, a plaintiff had waived privilege in the records of consultations by treating practitioners, and whether, by disclosing some medical records concerning the cause of her injuries, albeit on a 'without prejudice' basis, she was entitled to maintain the confidentiality of two particular documents not disclosed to the defendants. Judd J noted that:[5]

there are real difficulties in applying the principles of waiver, as they are applied to claims of legal professional privilege, to the notion of consent by a patient for the purpose of s 28(2). None the less there may be circumstances in which the principles may be usefully employed.

34 His Honour found that the plaintiff, merely by issuing the proceeding, had not waived privilege in the files of her treating medical practitioners. However, he found that by selectively disclosing certain medical records to the defendant, the plaintiff could not limit the use to which those documents could be put, and further, not disclosing other records held by her would make the information provided by her incomplete and possibly misleading.

35 Before turning to the submissions of the defendants and the plaintiff's response in detail, I would make some observations concerning the parties' positions with respect to the application of principles of waiver. First, like Judd J, but perhaps for different reasons, I have some real reservations concerning the applicability of the principles of waiver associated with the doctrine of legal professional privilege to the protection of confidential communications between alleged victims of sexual assault and their treating practitioners. In particular, the guiding principles set out in s 32AB give rise to a question as to whether the usual principles of waiver sit comfortably with the requirement to seek the leave of the Court to compel disclosure and to adduce evidence (noting that this application is limited to compelling disclosure, and is not an application to adduce evidence at trial). However, given the established line of authority concerning s 28(2) of the EMPA, and the fact that both parties proceeded on the basis that principles of waiver apply, I will proceed to consider whether the plaintiff has waived any right to maintain the confidentiality in the Later Notes and the audio tapes. However, in determining the question of whether the plaintiff has by his conduct acted, in all the circumstances, inconsistently with the maintenance of confidentiality (which I agree is the applicable test), I consider that the public policy objectives enumerated in s 32AB, and the relative strictness of the test for granting leave prescribed in s 32D of the EMPA, indicate that the Court should be cautious to find, in the absence of the express consent of the privilege holder, that the privilege has been waived. The need for caution is emphasised, given that I agree with the submissions advanced on behalf of the defendants that if there has been a waiver of confidentiality, the provisions of ss 32C and 32D are not engaged, at least with respect to the current application. It would, as submitted on behalf of the defendants, be somewhat absurd if, having found that there had been conduct inconsistent with the maintenance of confidentiality, I was to require the defendants to also overcome the hurdles imposed by reason of the terms of s 32C and s 32D of the EMPA, at least in an application to compel disclosure of the otherwise confidential communications. Accordingly, the protections offered to alleged victims of sexual assault by these provisions should not be lightly stripped away.

36 However, I disagree with the submissions advanced by the defendants that, by reason of the plaintiff's conduct, as enumerated in paragraph 33 above, the Later Notes have lost their status as confidential communications. Section 32B of the EMPA prohibits disclosure of particular individual 'communications', not a 'file'. Rather, I consider that the proper analysis, consistent with the authorities concerning loss of medical privilege, is whether, by reason of his conduct, the plaintiff has impliedly given his consent to the disclosure of the whole of Dr Pearce's file, such that the limitation in s 32E(1)(a) applies. This distinction may be of limited relevance to the current application, but might well be relevant to any application to adduce evidence at trial, as there may well be an issue as to the scope of any implied consent, that is, whether the consent is limited to the disclosure of documents as opposed to their presentation in court.

37 Turning now to the propositions advanced by the defendant, as summarised in paragraph 32 above, I do not consider that, merely by issuing this proceeding, the plaintiff has waived his privilege in otherwise confidential communications. The doctrine of 'issue waiver' is not engaged simply by the plaintiff making allegations of assault, and allegations that he has suffered injury as a result of those assaults. The documents upon Dr Pearce's file may be relevant to the allegations in the proceeding, but in order for the doctrine of issue waiver to be engaged, the plaintiff must have gone further than simply making allegations regarding factual matters: he must have put the contents of the confidential communications themselves in issue, or otherwise engaged in conduct which necessarily laid those communications open to scrutiny. The question of 'issue waiver' often, but not exclusively, arises in proceedings whereby a party, by reason of its pleadings or some other conduct, puts in issue its state of mind regarding a certain matter in such a manner as to be inconsistent with the maintenance of confidentiality in documents evidencing that state of mind, or were relevant to the formation of that state of mind. The doctrine of issue waiver was considered in great detail by Allsop J (as he then was) in the oft cited decision of DSE (Holdings) Pty Ltd v Intertan Inc and anor.[6] In his reasons, his Honour:

(a) expressed his view that the decision of the High Court in Mann v Carnell

works a narrower and more confined operation than as expressed by the majority in [Telstra Corporation Ltd v BT Australasia Pty Ltd];[7]

(b) rejected the proposition that a mere denial of an assertion that the holder of the privilege had a certain state of mind will suffice to lead to a waiver of privilege;[8]

(c) referred to the statement of principle in Mann v Carnell reproduced at paragraph 41 of these reasons, and went on to say:[9]

The expression of that principle and the subordination of the notion of 'fairness' to possible relevance in the assessment of the inconsistency between the act and the confidentiality of the communication produces, it seems to me, an important change in the existing law. In order to explain why I think this is to be so it is necessary for me to examine the pre-existing authorities. This will also illuminate the operation of the principle as expressed in Mann v Carnell at 13 [29], and the importance of the recognition that it is the inconsistency of between the relevant act of the holder of the privilege and the maintenance of the confidence that is essential, not a broad balancing process based on fairness;

(d) referred to with approval the following statement of McLelland J in United States Surgical Corporation v Hospital Products Pty Ltd,[10]

Nevertheless, before the privilege can be said to have been lost on this principle, one must be at least able to identify some element or feature of the claim made, or the evidence adduced, by the party otherwise entitled to the privilege, which would render reliance on the privilege unjust;

(e) noted that the circumstances where a privilege holder may have waived any confidentiality in a privileged communication may not be limited to where there has been express or implied assertions about the contents of the communications. Rather:[11]

I would express the matter as including the laying open of the confidentiality to necessary scrutiny, and by so doing, (that is by expressly or impliedly making all assertion about the contents of the communication or laying the communication open to scrutiny) the inconsistency enunciated by Mann v Carnell is brought about. But it is the existence of that inconsistency that is important;

and

(f) emphasised that merely pleading matters of fact cannot, without more, amount to conduct inconsistent with the maintenance of confidentiality in privilege in communications which are or may be relevant to that fact, stating:[12]

The act of mere denial by the respondents of an assertion by the applicants is not an act by the respondents which expressly or impliedly makes an assertion about the contents of a privileged communication or which necessarily lays any such communication open to scrutiny. There is no act of the respondents inconsistent with the maintenance of the confidentiality. There is a joinder of issue on a question of fact to which the privileged communication can be seen as relevant. That is insufficient in my view for it to be concluded that there the necessary inconsistency enunciated by Mann v Carnell.

38 The final observation above is of particular relevance to the current application. Of course, here the privilege holder is bringing a claim, not defending a claim, but in my view, the same principles apply. In his statement of claim, the plaintiff, apart from formal matters and noncontroversial allegations about the existence and content of the duties said to be owed by the defendants or any of them, essentially pleads matters of fact: being the incidents said to constitute the Burke Hall abuse, and the alleged physical and psychological consequences of the Burke Hall abuse. To the extent that the plaintiff's 'state of mind' is in issue, it is as an injury said to have been suffered as a consequence of the defendant's alleged breach of duty, it is not a matter fundamental to his cause of action, as it might be in cases of say, undue influence. If I were to accept the submissions of the defendants in relation to the question of 'issue waiver', the mere bringing of an action in a personal injury proceeding would automatically throw open to scrutiny a plaintiff's entire medical and counselling history, and provisions such as s 28, s 32C, and s 32D of the EMPA would be rendered redundant.

39 As for the question of whether the provision of the 12 October report, the 7 January report and other documents authored by Dr Pearce to the first defendant's former solicitors, and their discovery by the plaintiff in this proceeding, require the disclosure of all documents held by Dr Pearce that relate in any way to these reports and their preparation must be disclosed, that question can be dealt with, in the negative, fairly briefly. First, while in their submissions both parties seem to assume that Dr Pearce will file and serve an expert report, and/or be called to give evidence on behalf of the plaintiff, I am not sure that confidence is warranted. According to his own evidence, Dr Pearce is not an expert in treating victims of childhood sexual assault, and, by the time of the trial, will have not treated the plaintiff for some three years. Secondly, given the evidence regarding the context and purpose for which the October 2012 report and the 7 January report were prepared, and the contents of the report themselves, I do not consider that they can be characterised as expert reports such as to attract the operation of the principles summarised by Derham AsJ in Matthews v SPI Electricity and Ors.[13] Rather, it is tolerably clear that the reports were prepared for the purpose of briefing Dr Brann, the independent expert briefed by the parties as part of a consensual, prelitigation claims process, and to provide the parties' former solicitors further information about the plaintiff's ongoing treatment and treatment needs.

40 Similarly, it is apparent from the evidence that the Later Notes, or indeed any of Dr Pearce's notes, were not prepared for the purpose of a legal proceeding, such that the exception in s 32E(1)(c) applies. The evidence filed on behalf of the plaintiff is to the effect that the purpose of the sessions held by Dr Pearce with the plaintiff after 31 October 2012 were purely for therapeutic purposes, not for the purpose of any legal proceeding. While the plaintiff does not oppose the defendants being provided with the records of the sessions which post-date the plaintiff's realisation of the Burke Hall abuse, but predate 31 October 2012, it seems to me that the exception in s 32E(1)(c) does not apply to those records: again, the evidence is that the documents were not brought into existence for the purpose of a legal proceeding, but for the purpose of briefing an independent expert as part of a consensual prelitigation claims process, and to provide the parties' former solicitors with information concerning the treatment.

41 The argument of real substance in this application, is whether, by disclosing a substantial proportion of Dr Pearce's file, including the 12 October report and the 7 January report, the plaintiff has acted inconsistently with the maintenance of confidentiality in the remaining part of Dr Pearce's file, being the audio tapes and the Later Notes. Again, as noted by counsel for the plaintiff in the written submissions, the applicable test is that spelt out by the High Court in Mann v Carnell,[14] as follows (citations omitted):

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether the particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that the waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege ... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

42 Counsel for the defendants submitted that the plaintiff cannot draw what they say is an arbitrary distribution between the Later Notes and audio tapes and the balance of Dr Pearce's file, which has largely been disclosed by the plaintiff.

43 Counsel for the defendants submitted that the centrality, or crucial relevance of a treating psychologist's notes in historical sexual abuse cases has been recognised by the High Court in the recent decision of Price Alfred College Incorporated VADC,[15] where, in a case where the plaintiff sought, among other things, an extension of time under the Limitations of Actions Act 1936 (SA), the majority of the Court stated as follows:

In addition, Kourakis CJ did not take into account that the loss of the psychologist's notes significantly prejudiced a fair trial of the respondent's claims against the PAC [the college]. The PAC sought to advance a case that the respondent's disorders were not 'linked to his abuse by Bain' but were associated with issues as to anxiety and alcohol abuse which the respondent was said to share with other members of his family. In this regard, the PAC was able to point to the circumstance that the referral to the psychologist from the respondent's general practitioner attributed the respondent's symptoms of 'destructive anxiety, inadequacy and inability to concentrate, make decisions and handle pressure plus the physical symptoms of tremor' to financial pressures and abuse of alcohol. The PAC sought to develop an argument that it was only after the period of treatment by the psychologist that the respondent reported to the expert witnesses called on his behalf in terms which suggested post-traumatic stress disorder. As the primary judge observed, the argument was, in effect, that the psychologist had inadvertently coached the respondent. In these circumstances it may have been preferable for her Honour not to make a finding with respect to the cause of the respondent's disorder. Indeed it would have been preferable not to decide the issue of liability at all.

These problems with respect to the PAC's evidence were necessary to be taken into account in the exercise of the discretion conferred by s 48 of the Limitations Act. They could not be ignored by saying that the damages to be awarded to the respondent, should his claims ultimately succeed, may be reduced to reflect the delay during which evidence has been lost. To say that is simply to acknowledge that a fair trial on the merits of the case in order to do justice according to law is no longer possible.[16]

44 Counsel for the defendants submitted that as the plaintiff has relied upon Dr Pearce's records in bringing his claim, has served expert reports prepared by Dr Pearce, and has discovered a substantial proportion of Dr Pearce's notes, the plaintiff has waived any privilege in the audio tapes and the Later Notes. The defendants relied upon the following statement of Mason and Brennan JJ in Attorney General (NT) v Maurice:[17]

An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege.

The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:

[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended the result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.

In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co v Home Insurance Co [1951] 1 WLR 529.

45 In the written submissions filed on behalf of the plaintiff, the plaintiff rejected the contention that the plaintiff's conduct was inconsistent with the maintenance of confidentiality in the Later Notes. The relevant submissions are reproduced below (citations omitted):

The plaintiff submits that in the present case there is no relevant inconsistency between, on the one hand, the plaintiff having referred to the reports of Dr Pearce referred to in paragraph 41(a) below in preparing the statement of claim in this proceeding and, on the other hand, maintaining the confidentiality of the Later Notes. Fundamentally that is because the reports and the Later Notes are distinct and different in purpose, form, content and intended recipient. It is not a case such as R v Sawyer-Thompson, where the notes had been used by a psychologist in preparation of a report relied upon by (in that proceeding) a person accused of murder.

It is, the plaintiff submits, important to keep in mind that Dr Pearce's primary role at all material times has been as the plaintiff's treating psychologist and counsellor. Only for reasons of convenience and efficiency, and only in the context of the defendants' stated acceptance of the 'Claims Process' proposed by Mr Ellis as a means of seeking a resolution of the case, was Dr Pearce enlisted in his secondary role to assist in the preparation of briefing materials for Dr Brann.

The Summons appears to assume that the fact of Dr Pearce having had that secondary role somehow extinguishes or nullifies the protections that would otherwise be afforded to documents and other records created by Dr Pearce in the performance of his primary role. The defendants have, for instance, asserted in correspondence that the Remedial Sessions (from which arose the Later Notes) were 'undertaken for the purpose of the current proceeding', which is plainly incorrect.

The plaintiff's position is that Dr Pearce's transient 'secondary role' does not and should not compromise or impair prevention of dissemination of 'protected evidence' documents created by Dr Pearce in his 'primary role' as the plaintiff's treating psychologist and counsellor.

46 I should state at the outset that the defendants' reliance upon ss 122 and 126 of the Evidence Act 2008 (Vic) is misconceived: while the principles discussed in the authorities considering those provisions may guide the consideration as to whether the plaintiff impliedly consented to the disclosure of the Later Notes and the audio tapes, the provisions themselves only apply to claims for legal professional privilege.

47 In my view, the plaintiff, by providing, or more accurately, by his former solicitor providing the transcripts of the sessions held between the plaintiff and Dr Pearce, has waived any confidentiality in the audio tapes of those particular sessions. In particular, having regard to the gaps in the transcripts provided to the defendants, the failure of the plaintiff to allow disclosure of the audio tapes risks the transcripts being misleading and incomplete. However, given the serious concerns expressed by Dr Pearce about releasing those audio tapes, I will make very restrictive directions regarding the custody and use of the audio tapes. At this stage, I propose that only Dr Entwisle be permitted access to the audio tapes. A draft set of directions will be provided separately to the parties and to Dr Pearce.

48 However, I do not consider that, by providing access to, and then discovery of, Dr Pearce's records which came into existence prior to 31 October 2012, the 12 October report and the 7 January report, the plaintiff has acted inconsistently with the maintenance of confidentiality in the Later Notes.

49 Returning to the question of the Later Notes, I agree that there is a material distinction between Dr Pearce's role in gathering material and transcribing information for the purpose of briefing Dr Brann, which was assigned to him largely for reasons of convenience, given the plaintiff's remote location, and his role as the plaintiff's treating psychologist. If another person had engaged in that task for the purpose of facilitating the claims process, there would be no question of there having been any waiver of confidentiality in Dr Pearce's records.

50 I agree with the submissions advanced by counsel for the plaintiff that Dr Pearce does not lose his status as a therapy provider merely by reason of his participation in the claims process. Further, while it is apparent from the contents of the 7 January report that parts of this report are based upon the contents of the Later Notes, this report was also prepared in the context of the claims process, where the parties expected to be shortly proceeding to mediation, and where the first defendant was funding the plaintiff's treatment and support of the plaintiff by Dr Pearce. That funding was not provided upon any condition or understanding that the first defendant would have access to the Later Notes, or at least that is not evident from the correspondence between the parties at that time.

51 I accept that my findings with respect to the Later Notes may seem inconsistent with the findings of Judd J in Elliott v Tippett. However, in my view, the position is different in the current case. First, there is the evidence in the current application regarding the different purposes for which Dr Pearce created the 12 October report and the 7 January report, and associated documents, and the Later Notes. Secondly, Elliott v Tippett concerned with s 28 of the EMPA: the provisions of Division 2A of Part II of the EMPA have as their express objective the protection of the confidentiality of the confidential communications of alleged victims of sexual assault, such that a finding that there has been conduct inconsistent with the maintenance of the confidentiality should not be made lightly. Finally, and while this was not the subject of any submissions by any party, the Civil Procedure Act 2010 (Vic) was enacted after the decision in Elliott v Tippett. While it is not determinative of the matter, it seems to me to be at least a relevant matter that the Court, in the exercise of any powers in a civil proceeding, must have regard to, among other things, the 'public interest in the early settlement of disputes by agreement between the parties'.[18] In my view, the Court should be cautious, particularly in proceedings involving claims of this nature, to deter parties from engaging in a frank and open exchange of information in an attempt to resolve a claim prior to embarking upon litigation.

52 Accordingly, in order to compel disclosure of the Later Notes, the defendants must obtain leave from the Court, having regard to the matters set out in s 32D of the EMPA.

53 I accept the submissions advanced on the part of the plaintiff that the requirement that the evidence be of substantial probative value to a fact in issue in the proceeding is a threshold which must be overcome before considering the other relevant factors in s 32D of the EMPA. Counsel for the plaintiff referred to the decision of the Court of Appeal in James Baker (a pseudonym) v R,[19] where the Court stated:

Assuming for present purposes that the credibility of the complainant is a fact in issue for these purposes, the test for leave still imposes a high hurdle. It calls for 'substantial probative value'. 'It also requires satisfaction that the evidence "will" have such value.'

Counsel for the plaintiff submitted that the defendants had not overcome this onerous hurdle.

54 Counsel noted that Parliament, by enacting these provisions of the EMPA, sought to achieve a fundamental end, which was the protection of people in the position of the plaintiff by limiting the disclosure of communications to those which are strictly necessary for the conduct of the proceeding. He submitted that the defendant already has a substantial amount of medical material. As there is no criminal proceeding on foot, no concerns as to the liberty of an accused person arise. The evidence is that the plaintiff had a reasonable expectation of confidentiality with respect to his sessions with Dr Pearce, and he saw no connection between the sessions he held with Dr Pearce after 31 October 2012 and the claims process. Further, the plaintiff did not become aware of the first defendant's demand for his notes until approximately 21 May 2013, and if he had known that the notes from these sessions might be sought or obtained by the defendants, or their representatives, he would not have attended those sessions or he would have asked Dr Pearce not to make any substantive notes of them.

55 With respect to the 'public interest' factors enumerated in s 32D(2), counsel for the plaintiff submitted that making orders compelling disclosure of confidential communications between victims of sexual assault and their treating practitioners could have a significant and chilling effect, particularly in the current climate. It is likely to:

(a) discourage other victims of sexual offences from seeking counselling;

(b) deter such people from seeking compensation in respect of the abuse they have suffered; and

(c) impair the effectiveness of such counselling, if treating practitioners choose not to, or are instructed not to take any substantive notes.

56 Finally, counsel for the plaintiff submitted that, given that the plaintiff suffers from serious and chronic psychiatric and psychological conditions, there is an acute risk of severe harm if the Later Notes were produced to the defendants and their representatives. He relied upon the statements by Dr Pearce and Dr Brann to that effect in 2013.

57 Counsel for the defendants submitted that in order to identify whether the Later Notes will have a substantive probative value to the issues in the proceeding, I ought exercise my power to inspect the Later Notes under s 32C(6) of the EMPA. I determined to do so, partly on the basis that the evidence was such that, even if some of the Later Notes have substantial probative value, that would only be a limited sub-set of the Later Notes. That proved to be correct. I identified a relatively modest subset of the Later Notes as satisfying the 'substantive probative value' test ('relevant documents').[20] My inspection also verified the evidence advanced on behalf of the plaintiff regarding the purpose for which the Later Notes came into existence. While in a temporal sense my inspection of the Later Notes followed my reaching the view that there had been no waiver of confidentiality of the Later Notes, inspection of the Later Notes only reinforced my view that the sessions with Dr Pearce which postdated the 12 October report had a substantially different purpose than the information gathering sessions held between the plaintiff and Dr Pearce for the purpose of the claims process and to brief Dr Brann. My inspection also identified a number of documents which on their face would be subject to a claim for legal professional privilege by the plaintiff. Questions might arise as to the dominant purpose of some of the communications, or whether any legal professional privilege has been waived. This issue has not yet been the subject of any substantive submissions by either party, although it may arise after the plaintiff's solicitors have completed their inspection of Dr Pearce's complete file.

58 As noted above, my inspection of the Later Notes has identified twenty file notes which will have substantial probative value to a fact in issue in the proceeding. These documents are enumerated in the schedule to these reasons. There are also two other documents in Dr Pearce's file authored by the plaintiff which I have not included in the schedule of relevant documents, because I do not consider they have substantial probative value, but seem to be relevant to the issues in the proceeding, which probably ought to be discovered by the plaintiff if they have not already been discovered. The relevant documents primarily concern the emergence of further memories of the Burke Hall abuse which emerged after the preparation of the 12 October report, the emergence, or possible emergence, of memories concerning other childhood abuse, and the plaintiff's reports of the physical and psychological impact of the Burke Hall abuse. The contents of the balance of the Later Notes is largely consistent with the evidence advanced on behalf of the plaintiff in this application. While their contents might be of interest to an expert preparing a medico-legal report, and might provide a more complete picture to an expert, I did not form the view that the relevant threshold was cleared in respect of the majority of the Later Notes.

59 Accordingly, in the case of the relevant documents, it then falls to me to determine whether the other requirements of s 32D(1) have been satisfied so as to warrant the disclosure of these documents to the defendants, being the presence or absence of other evidence concerning the matters to which the evidence relates, and whether the public interest in presenting the confidentiality of confidential communications and protecting the plaintiff from harm is substantially outweighed by the public interest in admitting into evidence the relevant documents. Further, in reaching a view as to what the public interest requires, I must take into account the matters specified in s 32D(2) of the EMPA, of which ss 32D(2)(a), (c), (e) and (f) are relevant to the current application.

60 In my view, apart from the 7 January report, and the evidence that the plaintiff will himself give, there is no other evidence available to the defendants of similar or greater probative value than the notes of the sessions with Dr Pearce where the plaintiff recounts his emerging memories and discusses the impact of the Burke Hall abuse upon him. The alleged perpetrators are deceased, the records of some mental health practitioners who have treated the plaintiff in the past are no longer available, and there is nothing before me to suggest that the plaintiff has other corroborative evidence upon which to rely. While I am of course in no position to make any findings in relation to the factual issues in this proceeding, the defendants have put the plaintiff to his proofs with respect to the question of whether the Burke Hall abuse occurred, as they are entitled to do, and the issues associated with causation and disentanglement of injuries are clearly of some complexity. Dr Pearce's notes provide the best contemporaneous record of these matters, particularly given, as indicated earlier in these reasons, it is unclear to me whether Dr Pearce will in fact be called to give evidence.

61 Before turning to the question of the public interest, it is appropriate to consider the relevant matters in s 32D(2) of the EMPA, in particular, the likely harm to the plaintiff and other members of his family if the documents were disclosed. First, none of the relevant documents make reference to personal matters concerning either the plaintiff's partner or daughters. Secondly, a substantial proportion of the relevant documents are session notes which were clearly the source of many of the matters referred to by Dr Pearce in some detail in the 7 January report, which has been, for better or for worse, disclosed to the defendants. Therefore, it is unlikely that disclosure of the primary records which underlie the narrative in this report will cause substantial additional harm to the plaintiff over and above the distress which was caused to the plaintiff by becoming aware that Dr Pearce's reports had a wider audience than Dr Brann and the plaintiff's former solicitor.

62 Further, the plaintiff consented to the whole of Dr Pearce's file, including the Later Notes, being provided to the Victoria Police. While I accept that the plaintiff has particular concerns about information falling into the hands of these defendants, given his concerns about the Jesuit order in general, not just the alleged perpetrators of the Burke Hall abuse, his consent to the release of Dr Pearce's file to the police does suggest that he was prepared to waive his right to confidentiality in some circumstances.

63 Finally, while the plaintiff relies upon the correspondence between Dr Pearce and Dr Brann with the plaintiff's former solicitor to support his submissions that disclosure of the audio tapes and the Later Notes will cause the plaintiff harm, this correspondence took place nearly three and a half years ago, and there is no contemporary evidence of the plaintiff's current psychological state or the impact of disclosure of the Later Notes, or a limited subset of the Later Notes. The relevant documents do not refer to the relationship and interactions between the plaintiff and his family members. As Dr Pearce is no longer treating the plaintiff, disclosure of the relevant documents will not impact upon the plaintiff's current therapeutic arrangements. Also, I would be content for the plaintiff's solicitors to review the relevant documents and identify any information which would be appropriate to be redacted. Some documents where I consider there could be redactions made are identified in the schedule.

64 As for the potential precedential impact upon victims of sexual assault of ordering disclosure of the documents, there are particular features of the current proceeding and the current application which may limit that impact. The parties, again, for better or for worse, engaged in a consensual prelitigation claims process in an attempt to achieve an early resolution of the plaintiff's claim, which involved the provision of a substantial amount of highly personal and sensitive information. Some of that information, in particular the 7 January report, provided, in effect, a narrative of the events described in the relevant documents, which in turn form only a modest subset of the Later Notes.

65 Further, there are other features of this particular proceeding which may distinguish it from the majority of claims involving claims of sexual assault and sexual abuse. As well as the matters referred to above, there is the fact that the plaintiff's first realisation of the Burke Hall abuse post-dated the alleged abuse by forty years, which substantially increases the forensic importance of communications evidencing the recovery of memories of abuse. Further, and while this consideration may have broader application, the unfortunate reality of proceedings involving historical sexual abuse means that often the only source of probative evidence is the complainant and their treating practitioners, necessitating in some cases at least some limited disclosure of confidential communications in order to ensure a fair trial.

66 Having regard to the above matters, including the subjectmatter of the relevant documents and the lack of current psychiatric evidence concerning the potential harm to the plaintiff of the disclosure of the relevant documents, I have come to the view that the public interest in the defendant having a fair trial outweighs the relatively limited harm to the plaintiff of a disclosure of a relatively limited number of additional documents. However, the plaintiff should not be shut out from contending at a later time that, notwithstanding certain confidential communications between Dr Pearce and the plaintiff have been, or will be disclosed to the defendants, that the defendants should not be permitted to adduce certain evidence at trial. It may well be that the potential harm to the plaintiff in having certain evidence presented in court, or at least in open court, may be more severe than the disclosure of that information for a limited purpose. But that is for another day, and is most likely a matter which should be determined by the trial judge.

Typed file note headed Loyola Tennis Club, 14 November 2012 (2 pages)

Report from Symbion Imaging dated 29 September 2009 (1 page)

FATHER BRIAN McCOY SJ (in his capacity as Provincial of The Australian Province of the Society of Jesus)

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Judgment (217 paragraphs)

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