Smith (a pseudonym) v ACT [2025] ACTSC 175

As to the first application, the leave is sought nunc pro tunc. The reason for that is that the documents sought, or at least the protected confidences sought, have in fact already been disclosed by the plaintiff to the defendants during the course of her compliance with the pre-court procedures specified in chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT).

The application mistakenly sought leave nunc pro tunc in respect of a broader range of documents than had in fact been produced by that date, and accordingly the first defendant moves today only on orders 1 and 2 in the application of that date. Separately, I note that the orders sought include not only the grant of leave to allow production and disclosure of the protective confidences, but also an order that that material be “prima facie admissible for the purpose of these proceedings”. During the hearing of argument, I expressed the view, and Mr Fordham SC accepts, that it would not be appropriate for the Court to make that order at this stage. The question of admissibility of the material is more properly left for the trial judge. Leaving that aside, those are the orders sought.

The application of April 2025 seeks leave to issue subpoenas not only to the two entities who have already disclosed materials but to additional entities. The basis for the application is that, in her claim, the plaintiff has alleged, first, that a teacher at her high school sexually assaulted her, and secondly, that as a result of those acts, she has suffered injuries and disabilities, including psychiatric harm, and those are the principal issues in dispute.

The defendants dispute both the acts alleged and the extent of the plaintiff’s claimed injuries and disabilities. They also dispute that any injuries or disabilities from which she suffers were caused by the alleged sexual abuse, and they dispute the quantum of the plaintiff’s claim. The entities from whom documents are sought, and in respect of which leave is sought to inspect the protected confidences, are all entities identified by the plaintiff as places where she obtained medical assistance or counselling services.

The parties relied on my decision in Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 as [17]-[25] where I outlined the three stages at which it is necessary for leave to be sought for the disclosure of protected confidences. First, leave is required to compel the production of a protected confidence. Secondly, leave is required to inspect and make use of protected confidences. Thirdly, leave is required to adduce the evidence at the hearing. In the case of the two entities that have already produced material, as I have already indicated, leave to compel production is sought nunc pro tunc. As to the balance, it is sought prospectively for the purpose of issuing the subpoenas.

Before granting leave, the Court must be satisfied that there is a legitimate forensic purpose for seeking leave. On that issue, the parties again relied on my decision in Stanley where I expressed the view that the considerations in s 79H of the Evidence (Miscellaneous Provisions) Act are of less weight in a case where a person has put in issue the causes of their injuries and disabilities.

I am satisfied that there is a legitimate forensic purpose for seeking the material. I note that the plaintiff consents to the applications and that the second defendant also consents. The forensic purposes include allowing the material to be inspected by experts qualified by the parties, who will give evidence about the extent of the plaintiff’s injuries. A further legitimate forensic purpose, akin to the situation I discussed in Stanley, is the purpose of the defendant having an opportunity to ascertain whether consistency in the complaints made by the plaintiff to those in whom she confided and in her disclosure of her claim in the Chapter 5 processes and in the proceedings might suggest a basis for settling her claim out of court.

The first defendant has, in that context, cited my remarks in Stanley at [22] where I said: A party may equally be assisted by learning from documents produced on subpoena that a plaintiff’s claim appears to be entirely honest and consistent, so warranting settlement of a claim out of court, as by material that might be used to attack the plaintiff’s credit. It is not compulsory to impugn the credit of a witness who claims to have been the victim of sexual assault or domestic violence.

In the circumstances, I am satisfied that the factors listed in s 79H(3), insofar as they militate against granting leave to compel the production of protected confidences, are outweighed by the interests of all parties in these proceedings in having access to that material. I am particularly mindful in that context of the fact that the plaintiff, who brings the proceedings, consents to the application. Orders

For those reasons, I make the following orders: (1) The plaintiff in these proceedings be referred to by the pseudonym “Ella Smith”. (2) That the first defendant be granted the leave of the court, nunc pro tunc, pursuant to ss 79D and 79H of the Evidence (Miscellaneous Provisions) Act 1991, for leave to allow protected confidence evidence produced and disclosed by Sapphire Coast Medical Practice to be disclosed and prima facie admissible for the purpose of these proceedings. (3) That the first defendant be granted the leave of the court, nunc pro tunc, pursuant to ss 79D and 79H of the Evidence (Miscellaneous Provisions) Act 1991, for leave to require the production and disclosure of protected confidence evidence produced and disclosed by Dr Bruce Stevens to be disclosed and prima facie admissible for the purpose of these proceedings. (4) That the first defendant be granted the leave of the court, pursuant to r 6601A of the Court Procedures Rules 2006, to issue subpoenas requiring the production of documents materially relevant to the claim, such documents including or likely to include protected confidence evidence to the following entities or individuals: (a) CatholicCare (b) Stable Change Equine Therapy and Counselling (c) Sapphire Coast Medical Practice (d) Dr Bruce Stevens (5) That costs of and incidental to this application, be costs in the cause.