• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

1. As a result of the extensive work last century of the Model Criminal Code Officers Committee (a Committee of the Standing Committee of Attorneys-General), it is now commonplace in jurisdictions across Australia for there to be a statutory qualified public interest immunity against disclosure of confidential counselling communications between counsellors and their clients in respect of allegations of sexual assault or family violence. In the Territory, this immunity is provided for in div 4.4.3 of ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Among other protections, the provisions of div 4.4.3 impose a requirement for leave of the Court before a party can seek to compel the production of any document that records a “protected confidence” within the meaning of the Act.

2. The Commonwealth as defendant in these proceedings issued non-party notices, obtained access to many documents recording protected confidences and disclosed those documents to an expert witness, all without first obtaining the required leave. By application in proceeding dated 19 April 2023, the Commonwealth sought to rectify the default retrospectively by seeking leave nunc pro tunc (a Latin phrase meaning “now as if then”) to issue subpoenas addressed to the same persons and entities.

3. Before explaining my reasons for granting the leave belatedly sought by the Commonwealth, I wish first to emphasise that the issue of the non-party notices without leave and the subsequent use of some of the documents produced constituted a breach of s 79D of the Evidence (Miscellaneous Provisions) Act. No satisfactory explanation was given for the default. The evidence before me simply stated that div 4.4.3 of ch 4 of the Act was, “due to oversight, not considered”. To compound the default, one of the counsellors who complied with the (non-compliant) non-party notice served on her in 2021 was, “due to oversight”, not remunerated at that time for her expenses in compiling the documents. It seems likely that, had the required application for leave been duly made, that issue would have been addressed at the appropriate time.

4. It is to be expected that, as a model litigant, the Commonwealth will take steps to ensure that its legal representatives are always aware of the important protections for victims and their counsellors that were overlooked in this case.

Circumstances in which the application was brought

5. The plaintiff, Karen Stanley (a pseudonym), sues the Commonwealth for damages for trespass to property and nervous shock arising from the conduct of officers of the Australian Federal Police on an occasion when they attended her home in response to reports of suspected domestic violence. At the time police attended the premises, Ms Stanley was at home with her partner and his mother. The reports police had received evidently suggested that Ms Stanley may be a victim of violence at the hands of her partner. As a result of what followed, the partner and mother have each brought separate proceedings arising out of the same incident.

6. In short, all three plaintiffs allege that police forced entry to the premises and used excessive force against Ms Stanley’s partner causing physical injuries to him (resulting in his being hospitalised) and mental trauma to all three. All three proceedings are listed for hearing at the same time commencing 26 June 2023.

7. Ms Stanley’s action was commenced in July 2021. The Commonwealth served the notices for non-party production in November 2021 seeking production of documents by various health professionals identified in the amended statement of claim as people or services from whom Ms Stanley had obtained treatment for the injuries and disabilities the subject of her claim. It is not disputed that the notices had a legitimate forensic purpose. Plainly, there will be an issue in the proceedings as to the mental harm Ms Stanley claims to have suffered as a result of the alleged assault of her partner in her presence, her consequent need for psychiatric treatment and counselling and her claim to have suffered impairment of her capacity to earn as a result of those matters. I accept that the Commonwealth has a legitimate forensic purpose in seeking production of mental health records that might record information relevant to the assessment of that claim.

8. The Commonwealth brings the present application in recognition of the fact that, on its own case, notices for non-party production seeking to compel the production of Ms Stanley’s mental health records should not have been issued without the leave of the Court under s 79D of the Evidence (Miscellaneous Provisions) Act. That is because the Commonwealth alleges that Ms Stanley was a victim of domestic violence on the evening police attended her home. The evidence includes a hand-written statement to that effect taken by a police officer after Ms Stanley’s partner had been arrested. Ms Stanley has since given evidence in criminal proceedings against her partner denying that she was subjected to any violence at his hands that evening. However, the Commonwealth accepts in its written submissions that, for the purposes of the Evidence (Miscellaneous Provisions) Act, the existence of the allegation was enough to trigger the requirement for leave.

Protections for vulnerable witnesses

9. The requirement for leave to disclose or compel the disclosure of protected confidences is part of a suite of special requirements mandated by the Evidence (Miscellaneous Provisions) Act for the protection of various classes of witnesses who might generally be considered to have particular vulnerability in their encounters with the justice system.

10. Chapter 4 of the Act addresses sexual, violent and family violence offence proceedings. The provisions concerning protected confidences are contained in div 4.4.3 of ch 4 under the heading “protection of counselling communications”. The term “counselling communications” is defined in s 79A(3) to mean a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality in the particular instances specified in the section. A “protected confidence” is defined in s 79A(1) to mean “a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed”.

11. The provisions of div 4.4.3 implicitly recognise that therapeutic counselling is important in the management of trauma and that trust and confidentiality are critical to its success. At the same time, it is recognised that there will be cases in which an accused person or, as here, a party to civil proceedings has a legitimate purpose for obtaining access to a complainant’s counselling notes. A balance is struck between those competing interests by creating a qualified immunity in respect of counselling communications concerning a complainant in sexual assault or family violence proceedings. The immunity is qualified to the extent necessary to protect the interests of other parties in legal proceedings. The mechanism by which those competing interests are balanced is to require a person seeking disclosure of a protected confidence first to obtain leave.

12. By its application, the Commonwealth sought leave “to disclose in (including to adduce evidence of), and for the purposes of this proceeding the protected confidences”. I took the view that any question of leave to adduce evidence, which plainly intersects with the issue of admissibility of the evidence, should properly be left to the trial judge. For that reason, I confined my attention to whether the Commonwealth should have leave to disclose the protected confidences in and for the purposes of the proceedings up to the point of deploying any of that material in evidence at the hearing.

The threshold test

13. Division 4.4.3 creates a two-stage process for obtaining access to protected confidences. The party seeking access must first satisfy the “threshold test” of establishing a legitimate forensic purpose for seeking leave to compel the production to the Court of a document recording a protected confidence. If the Court is not satisfied that the applicant for leave has met that threshold test, the Court must refuse the leave sought: s 79F(1).

14. Section 79F of the Act provides: Threshold test––legitimate forensic purpose (1) The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave. (2) To establish a legitimate forensic purpose, the applicant must— (a) identify a legitimate forensic purpose for seeking the leave; and (b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding. (3) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.

15. The present application first came before Baker J who granted leave to issue five subpoenas. Counsel for Ms Stanley submitted, however, that “the court has not fully and finally determined the threshold test”. She submitted that Baker J determined only that there was a sufficient legitimate forensic purpose for seeking the leave. Counsel further noted that no determination had been made in respect of the documents already produced in response to the initial non-party notices.

16. I do not accept that submission as framed. In particular, I do not think it is helpful to speak in terms of degrees of legitimate forensic purpose or its sufficiency for different purposes. In granting leave to issue the five subpoenas, Baker J was satisfied that the Commonwealth had established “a legitimate forensic purpose for seeking the leave”. It necessarily followed that there was also a legitimate forensic purpose for the non-party notices, which the subpoenas were intended to replicate. That was the purpose of seeking leave nunc pro tunc.

Three stages at which leave must be sought

17. However, the submission identified an important question concerning the proper approach to applications for leave to disclose protected confidences. Several provisions in div 4.4.3 refer to a requirement for leave. Ordinarily, a statute would be construed so as to give the same word the same meaning throughout, especially where, as here, the word appears in consecutive sections in the same division of the Act. That impression is reinforced by the fact that s 79E contemplates the making of a single application for leave.

18. However, upon analysis, it is apparent that the question of leave to disclose a protected confidence will fall to be considered at several different stages of the litigation and in respect of several different kinds of disclosure. Leave to compel production of protected confidences to the Court

19. The first is disclosure to the Court by the keeper of the document (ordinarily the relevant counsellor) at the time when the records are produced to the Court under compulsory process. At that stage, the applicant will not ordinarily be aware of the contents of the documents sought and will be left to establish a legitimate forensic purpose only by reference to the issues in the proceedings and the likely nature of the documents sought.

20. The difficulty in interpreting the threshold test in s 79F in that context has been considered in a number of decisions of this Court, helpfully gathered and analysed in the decision of Mossop J in R v Chute [2019] ACTSC 197 at [9]-[19]. For the reasons his Honour there gave, the question of leave to issue a subpoena compelling the production of a protected confidence should be determined on the basis that an “arguable case” means “a reasonable possibility in light of the known facts” and does not require at the threshold stage the establishment of the facts that provide the material assistance: at [19].

21. That approach has the virtue of being coherent with the common law as to the grounds on which any subpoena may be set aside. In circumstances where the party that sought the issue of a subpoena cannot know the contents of the documents sought, it is enough to establish apparent relevance: “it will not be fishing, manifesting an illegitimate forensic purpose, to seek to subpoena apparently relevant documents for the purposes of cross-examining an important witness, even if the subpoenaing party does not know whether those documents will assist or advance its case”: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [40] (Bell P, with whom I agreed at [98]).

22. In the same discussion, Bell P noted that “a party may be materially assisted in its case by knowing what apparently relevant documents say, even if those documents may not ultimately materially advance that party’s case” (emphasis in original). For example, a party may be equally assisted by learning from documents produced on subpoena that the plaintiff’s claims appear 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 family violence.

Leave to inspect and make use of protected confidences

23. Having been satisfied of the existence of a legitimate forensic purpose for seeking production of documents of unknown content, the Court must next conduct a preliminary examination of the documents produced “to decide whether leave should be given”: s 79G(1). It is clear that leave at that stage is given for a different purpose and that a different, more stringent test is to be applied. To hold otherwise would make no sense of the task imposed by s 79G, which interposes the requirement for a judicial determination before protected confidences can be disclosed more broadly. The purpose of that requirement was to address concerns that the growing use of confidential counselling communications in sexual assault trials was revictimizing witnesses, discouraging traumatised people from obtaining treatment for a recognised health problem and adversely affecting the counselling relationship: see Model Criminal Code Officers Committee, Chapter 5 – Sexual Offences Against the Person (Model Criminal Code Report, May 1999) at 277.

24. The question of leave to disclose a protected confidence at that second stage is governed by s 79H which imposes a minimum hurdle (for a civil proceeding, the Court must be satisfied that “the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence”) and a list of mandatory considerations in making that decision.

Leave to adduce the evidence - admissibility

25. The third point at which leave is required is if the evidence is sought to be adduced or tendered in the proceedings: s 79D(3)(b). As already indicated, in my view, that is properly a question for the trial judge.

Determination of the present application

26. The Commonwealth’s application for leave came before me for determination of the requirement for leave at the second stage (leave to disclose a produced document for the purposes of the proceedings) on 16 June 2023. By that time, it was necessary to examine the documents urgently so as to enable the parties to inspect and use them (if allowed) before the commencement of the hearing on 26 June 2023. On 17 and 18 June, I examined the documents produced in response to four of the five subpoenas, together with the documents that had previously been produced in response to the non-party notices. On 19 June 2023, I granted the leave sought by the Commonwealth in respect of those documents. On 21 June 2023, documents were produced in response to the fifth subpoena. I examined those documents and extended the leave to include them on 22 June 2023.

27. In granting leave to disclose the documents in and for the purpose of the proceedings, I was satisfied that, in the circumstances of this case, the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidences. In reaching that conclusion, I had regard to the considerations listed in s 79H(3) as follows.

28. Subsection 79H(3)(a) does not apply to civil proceedings.

29. The considerations in sub-ss 79H(3)(b) and (c), interest in ensuring that victims receive effective treatment and the prospect that disclosure of protected confidences may dissuade victims from seeking counselling or other treatment or diminish the value of counselling or other treatment, are of less weight in the present case where, by commencing the action, the plaintiff has put in issue the causes of her present injuries and disabilities.

30. It is not clear that the evidence will have a substantial probative value to a fact in issue: s 79H(3)(d). That is because, in large measure, the documents I examined support the plaintiff’s claim and are unlikely to assist in impugning her credit. However, as already explained, that affords a proper reason for permitting disclosure of the documents. It is not necessary to be satisfied that the documents will advance the Commonwealth’s case; only that having access to the documents will assist the Commonwealth in making decisions in relation to its case.

31. For the same reason, it is not clear that disclosure of the protected confidences will affect the outcome of the case: s 79H(3)(e). That is because they do not appear to harm the plaintiff’s case.

32. There is no reason to apprehend that disclosure of the protected confidences is sought on the basis of a discriminatory belief or bias: s 79H(3)(f).

33. The plaintiff does not object to the disclosure of the protected confidences: s 79H(3)(g).

34. The consideration in s 79H(3)(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”, does not have any particular relevance here.

35. The principal considerations favouring disclosure were the fact that the plaintiff did not object to the disclosure and the allied fact that, by commencing these proceedings, she has put the question of her mental health and the reasons for her claimed impaired earning capacity in issue. Other matters

36. As already explained, the present application sought to rectify the failure to seek leave before issuing the non-party notices. While the default was unfortunate, there is nothing in the text of the Act to suggest that leave cannot be granted retrospectively. In light of the clear importance of the documents in the present case, I was satisfied that it was appropriate to grant the leave sought nunc pro tunc and ordered the following: (1) The parties are given leave, nunc pro tunc, under s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to disclose in and for the purposes of this proceeding the protected confidences contained in [the relevant material]. (2) The parties are given leave under s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to disclose in and for the purposes of this proceeding the protected confidences contained in documents produced under [the relevant subpoenas]. (3) In the event that [the relevant material in order 1] contain any additional protected confidences, the defendant has liberty to apply to the Chief Justice to examine any such document. (4) The plaintiff has first access to the documents produced in response to the subpoenas referred to in order 2 for 48 hours after this order is communicated to the parties, with the parties to have access thereafter. (5) Both parties have leave to uplift and copy. If the plaintiff uplifts the documents, the plaintiff must return the documents to the Court before the time of general access.

37. Section 79G(7) requires the Court to make a record of the preliminary examination. That record is contained in a sealed envelope which I will have placed on the Court file.

38. On 23 June 2023, the proceedings were relisted for the purpose of considering ancillary orders for the protection of the plaintiff. The Court has power to make such orders under s 79I of the Act. For reasons disclosed in the record of the preliminary examination, I was persuaded that it was appropriate to make the orders sought by the plaintiff as follows: (6) Until further order of the Court the publication of: (a) The name of the plaintiff; and (b) Information which discloses the identity of the plaintiff; and (c) Information from which the identity of the plaintiff might reasonably be inferred; and (d) Protected identity information about the plaintiff, within the meaning of s 79I of the Evidence (Miscellaneous Provisions) Act 1991 (ACT); is forbidden under s 79I of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). (7) Note that the term “publication” in order 6 has a corresponding meaning to the word “publish” in s 81J of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), being to communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information. (8) Note that order 6 does not prevent the publication of the information in 6(a) to (d) by or to the Court, parties, legal representatives and witnesses within and during the course of the hearing of [the related proceedings of the partner and his mother]. (9) That, other than in accordance with an order of a judge of the Court, there shall be no public access to the Court file other than by the parties or their legal representatives.

39. I further ordered: (10) That the plaintiff be referred to in the proceedings by the pseudonym “Karen Stanley”.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 27 June 2023