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4. I made orders previously on a retroactive basis granting leave to obtain clinical records from: (a) Ginninderra Medical and Dental Centre; and (b) Strategic Psychology.

5. Those orders were made on the basis of an acceptance the records in question contained protected confidence evidence and the proceedings created a legitimate forensic purpose in seeking access to them. The next step in the process envisaged by Ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) is for the court to undertake a preliminary examination of the records in accordance with s 79G. I have now undertaken that inspection. The records comprise approximately 200 pages.

Weighing the public interest considerations

6. The residual matter to be dealt with under the application lodged on 21 May 2026 is that of leave to disclose the protected confidence evidence. In a civil proceeding that leave may only be given where the court is satisfied the public interest in ensuring the proceedings conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence: s 79H(1)(a) of the EMP Act.

7. The non-exhaustive list of matters to which the court must have regard in applying the public interest test for disclosure are set out in s 79H(3) of the EMP Act: … (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.

8. As these are civil proceedings, s 79H(3)(a) has no application. Following my review of the documents, the matters I consider of greatest moment as they apply to the public interest considerations in this case are: (a) QN, via his litigation guardian, consents to the disclosure of the records. That is a matter of real significance in circumstances where it is QN who is most affected by the disclosure and use of his personal medical records; (b) the relevant records have at least in part already been the subject of disclosure to expert psychiatrists retained by the plaintiff and defendant for the purpose of seeking medical opinions to be used in the proceedings. In the case of the defendant an expert, Dr Rikard-Bell, has produced a report which has been served having had the benefit of access to protected confidence evidence; (c) orders have been made limiting the disclosure of the identity of QN. Those orders have the effect of minimising the possible harm caused to him by disclosure of the subject records; (d) the substance of QN’s claim is one for psychological injury. The medical records are likely to have a substantial probative value in quantifying QN’s claim and in that sense they are likely to affect the outcome of the case; (e) there is no evidence before me to suggest the information contained in the records is likely to be available from another source; and (f) in bringing the proceedings it is likely that QN, via his litigation guardian, was aware his past medical history and records of treatment would be of significance in determining his claim.

9. For the reasons set out above I am satisfied the public interest in ensuring the proceedings are conducted fairly by permitting the use and disclosure of the records outweighs the public interest in preserving their confidentiality.

10. As I said in CN v ACT [2026] ACTSC 151 at [10], the issue of leave to rely on the disclosed documents for the purpose of hearing is a matter more appropriately addressed by the trial judge and I make no orders in that regard.

Orders

11. I therefore make the following orders: (1) Leave is granted, nunc pro tunc, pursuant to s 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to inspect and disclose protected confidence evidence produced under subpoena issued to the following health service providers: (a) Ginninderra Medical and Dental Centre; and (b) Strategic Psychology. (2) The costs of the application are costs in the cause.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 01 September 2026