RS v ACT

The plaintiff had a number of further consultations at the clinic, and on 6 August 2025, her left ankle gave way, she asserts, because of weakness and instability in the ankle, which in turn, had arisen from the delayed surgery.

The “hardware” was removed on 27 November 2025. The plaintiff’s case arises from the delay in the initial surgery, which has gone on to cause her significant injuries and disabilities. Relevantly, the disabilities include loss of trust in the medical profession, anxiety and depression, a psychological injury, and opioid dependency and then the symptoms of her withdrawal from that dependency.

The plaintiff, by an application in proceeding filed on 3 August 2026, sought orders under s 79D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act). I made orders on 27 August 2026 for the defendant to request production of the plaintiff’s clinical records from North Canberra Family Practice, and Canberra Health Services. The application is supported by an affidavit of Mr Robert Montagnino, who is the plaintiff’s solicitor.

Mr Montagnino states that a solicitor in his practice has identified general practitioner and ACT Community Health Services records, which refer to or suggest physical and sexual violence against the plaintiff. It is also stated that the records produced are likely to be a prime source of information concerning the plaintiff’s psychological condition.

The task now before me was described in this way by Muller J in DC v Tonks [2026] ACTSC 240, at [6]: The path to obtaining leave to inspect and disclose medical records is a narrower one than that applying to an application to seek records, noting something more than a legitimate forensic purpose and the likelihood of records being of assistance is required. At this stage of the process leave may only be given where I am satisfied the public interest in ensuring the proceedings are conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence. Section 79H(3) of the EMP Act sets out mandatory considerations to which I must have regard noting the list of matters is not to be viewed as exhaustive: 79H Giving of leave to disclose protected confidence (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. (4) Subsection (3) does not limit the matters to which the court may have regard.

His Honour went on to say that the above list was not exhaustive and that “the relevant public interest considerations in each case may be unique.”

The records produced in this case were produced without objection. Ultimately, it is important for me to be satisfied that it would be in the public interest to allow access to the documents.

The documents in this case have been produced by: (a) North Canberra Family Practice; and (b) Canberra Health Services

One matter that has concerned me is the allegation of sexual abuse. It would not be in the public interest to permit disclosure which might militate against the revelation of sexual abuse or family violence.

The plaintiff, through Mr Montagnino, does not oppose the disclosure of any protected confidences but seeks an order under s 79I of the Act to limit “any possible harm to the Plaintiff arising from the disclosure of the protected confidence evidence and her identity.”

The claim for psychological and psychiatric injury arising from the delayed surgery obviously brings into play any other pre- or post-existing conditions or circumstances, which might have an impact on the assessment of these injuries.

I have inspected the above documents and am satisfied that the appropriate leave should be given.