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[2025] ACTSC 345
Supreme Court of the ACT
2025-08-05
Muller AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Smith (a pseudonym) v Australian Capital Territory (No 2) Citation: [2025] ACTSC 345 Hearing Date: 25 July 2025 Decision Date: 5 August 2025 Before: Muller AJ Decision: See [18] Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – application for leave to disclose produced protected confidence evidence – mandatory considerations in granting leave – evidence inspected by Court – plaintiff consents to disclosure – leave granted Legislation Cited: Court Procedures Rules 2006 (ACT), r 6601A Evidence (Miscellaneous Provisions) Act 1991 (ACT), Ch 4, Div 4.4.3, ss 79D, 79F, 79G, 79H Cases Cited: BJT v Australian Capital Territory [2025] ACTSC 69 Hall (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113 R v Chute (No 5) [2019] ACTSC 52 Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 Parties: Ella Smith (a pseudonym) (Plaintiff) Australian Capital Territory (First Defendant) Robert Martin Forsberg (Second Defendant) Representation: Counsel D Crowe (Plaintiff) J Marshall (First Defendant) K Fox (Second Defendant) Solicitors Donaldson Law (Plaintiff) ACT Government Solicitor (First Defendant) Greg Walsh & Co (Second Defendant) File Number: SC 56 of 2024 MULLER AJ: Introduction
The plaintiff makes a claim for personal injury suffered as a consequence of a grooming process initiated by the second defendant and culminating in his sexual assault of her on multiple occasions at a time when she was a child in her early teenage years.
The occasion for the assaults was the plaintiff’s attendance at Deakin High School (the school) in Canberra, where the second defendant was employed as a teacher and volleyball coach. The first sexual assault is alleged to have occurred when the plaintiff was aged 15. The plaintiff alleges psychological injury and consequent loss and damage as a result of the abuse to which she was subject.
The plaintiff pleads the abuse as against the second defendant teacher. She sues the first defendant (the Territory) in negligence, referring to its systemic failures to afford her a reasonable level of protection in its care, control, operation and management of the school. In addition, she asserts that the school and, in turn, the Territory, is vicariously liable for the actions of the second defendant that occurred in the course of his engagement at the school.
It is entirely unsurprising that over the years since the subject events, the plaintiff has from time to time received treatment in the form of medical and ancillary services, including treatment relating to her psychological health. It is in the context of the first defendant's desire to review some of those medical records that the need for the present application has arisen.
The protected confidences legislation
In the ACT, as in other Australian jurisdictions, legislation has been enacted that provides a public interest immunity against disclosure of confidential counselling material relating to allegations of sexual assault or family violence. The relevant provisions are contained in Div 4.4.3 of Ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act). Relevantly for these purposes, there is a requirement for leave of the court before a party can seek orders compelling the production of a document that records a protected confidence within the meaning of the Act.
The legislation is framed in such a way as to require leave to be sought at three stages of the disclosure process. In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 at [17]-[25], McCallum CJ identified the stages as: (a) Leave to compel production of protected confidences to the court: ss 79D(3)(a) and 79F. (b) Leave to inspect and make use of the protected confidences after preliminary examination by the court: s 79H. (c) Leave to adduce evidence of or to tender the protected confidence in the proceedings: s 79D(3)(b).
In respect of the subject confidences, the parties are currently at the second stage. Orders were made previously by McCallum CJ on 2 May 2025, in accordance with s 79D of the Act, granting leave nunc pro tunc in respect of certain documents already produced by Sapphire Coast Medical Practice and Dr Bruce Stevens, pursuant to notices for non-party production. The Court also gave leave to the first defendant, pursuant to r 6601A of the Court Procedures Rules 2006 (ACT), to issue subpoenas requiring production of material likely to include protected confidence evidence to the following entities: (a) Catholic Care; (b) Stable Change Equine Therapy and Counselling; (c) Sapphire Coast Medical Practice; and (d) Dr Bruce Stevens.
Catholic Care have indicated that they have no documents to produce. The other three entities have now produced documents to the Court in response to the subpoenas they received. The Court is now required to conduct a preliminary examination of the material produced to determine whether leave should be given: s 79G(1).
Section 79G provides: 79G Preliminary examination of protected confidence evidence (1) If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given. (2) For the preliminary examination, the court may–– (a) require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or (b) require the counsellor or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity–– (i) to give the court written answers to any questions; or (ii) to attend the court for oral examination. (3) The court may also permit a written statement be made by the counselled person about the harm the counselled person is likely to suffer if leave is given. (4) The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination. (5) Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section. (6) The preliminary examination must be conducted–– (a) in the absence of the public and the jury (if any); and (b) in the absence of the parties to the proceeding and their lawyers, except to the extent otherwise decided by the court. (7) Evidence taken at the preliminary examination— (a) if the evidence is a statement taken under subsection (3)—must not be disclosed to the parties or their lawyers (other than the counselled person or their lawyer); or (b) in any other case—must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court. (8) A record of the preliminary examination must be made, but must not be made available for public access.
In R v Chute (No 5) [2019] ACTSC 52 at [22], Mossop J summarised the requirements of this stage as: Section 79G requires the court to conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given. For that purpose s 79G(2) has two alternatives, the first is to require anyone who has custody or control of the document recording a protected confidence to produce the document to the court for inspection. The second is to require the counsellor or the principal or other representative of the entity on behalf of whom the counselling was provided to give the court written answers to questions or attend the court for oral examination. In the present case what was sought was the issue of subpoenas to obtain documents. The difficulty is that the application as formulated sought the issue subpoenas which did not adequately identify the respondent in a manner that would be consistent with s 79G(2)(a) or allow compliance with the subpoena to be enforced.
Consistently with the approach taken by this Court in BJT v Australian Capital Territory [2025] ACTSC 69 at [10] and Hall (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113 at [45], I have undertaken a preliminary examination in accordance with the requirements of s 79G.
The application
The first defendant, by its present application in proceeding, now seeks the Court’s leave, pursuant to s 79H of the Act, for disclosure of protected confidences contained in the medical records of: (a) Stable Change Equine Therapy and Counselling; (b) Sapphire Coast Medical Practice; and (c) Dr Bruce Stevens.
The mandatory considerations that arise pursuant to s 79H(3) have the effect of creating a more rigid standard for the granting of leave than that arising under s 79F, that requires the establishment of a legitimate forensic purpose for seeking the leave. Section 79H(1)(a) provides that the court may give leave for disclosure of the protected confidence in a civil proceeding only if satisfied that “the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence”. The mandatory considerations in s 79H(3) are then as follows: 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.
Those considerations are not exhaustive: s 79H(4).
The subject documents
There is, at one level, a tension between the objects of this part of the Act in seeking to minimise the disclosure of protected confidences, with a view to ensuring that victims of sexual offences are not dissuaded from disclosing their experiences, and the obligation to give reasons in a public judgement that satisfactorily demonstrate due regard for the mandatory considerations.
After having had careful regard to the mandatory considerations in s 79H(3), I am satisfied that disclosure of the protected confidences contained in the material under examination is appropriate, as the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence. I have given particular consideration to: (a) The plaintiff's consent to the disclosure of the protected confidences; (b) The denial of liability by each of the defendants and the dispute between the parties regarding the quantification of the plaintiff’s claim; and (c) The likely probative value of the material under consideration, particularly in relation to the issue of quantum.
Orders
I grant leave for the disclosure of the protected confidences in the material produced under subpoena identified in the first defendant’s application.
I make the following orders: (1) Pursuant to s 79D(2) and s 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), leave is granted to the parties to inspect the records (the material) produced by: (a) Stable Change Equine Therapy and Counselling; (b) Sapphire Coast Medical Practice; and (c) Dr Bruce Stevens. (2) The plaintiff is granted first access to the material for a period of three days from the date of this order. (3) Thereafter leave is granted to each of the parties to rely upon the material for the purposes of the proceeding, subject to any later ruling as to admissibility pursuant to s 79D(3)(b). (4) The costs of the application are to be costs in the cause.
I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date:
Smith (a pseudonym)
Australian Capital Territory