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Background

3. The plaintiff claims damages for personal injuries (including psychological injury) allegedly suffered in the course of her employment with the defendant. She does not allege that any of her loss and damage arises from conduct that might constitute a sexual, violent or family violence offence.

4. Prior to the commencement of proceedings, the plaintiff’s solicitors obtained the plaintiff’s clinical notes from two general practices: the Interchange Health Co-Operative and Conder Surgery.

5. After the proceedings commenced, the parties caused, by way of notices for non-party production, the production of the plaintiff’s clinical notes from the following entities: (a) Canberra Health Services (CHS), including Canberra Hospital and the Mental Health, Justice Heath and Alcohol & Drug Service; (b) Interchange Health Co-Operative; (c) Kambah Village Medical Centre.

6. On a review of the records, it was discovered that the records contain “counselling communications” which constitute protected confidences under s 79A of the EMPA. In particular, the records contain disclosures relating to family violence perpetrated against the plaintiff, her children and her parents, as well as references to childhood trauma and [redacted]. Legislation

7. Division 4.4.3 of the EMPA is entitled “Sexual and family violence offence proceedings— protection of counselling communications”.

8. The central provision within this Division is s 79D, which is in the following terms: 79D General immunity for protected confidences (1) This section applies in relation to a proceeding. (2) A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure. (3) Without limiting subsection (2)–– (a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; and (b) protected confidence evidence is not admissible in the proceeding, unless the court gives leave. Example––par (a) A person could not be required to disclose a protected confidence in response to a request for production of documents in a proceeding unless the court gives leave.

9. The term “protected confidence” is relevantly defined in s 79A(1) of the EMPA 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”. Section 79A(2) provides that a counselling communication is a protected confidence even if it is made before the happening or alleged happening of the sexual or family violence offence or is not in relation to any sexual or family violence offending.

10. Leave to disclose a protected confidence may be sought under s 79E of the EMPA.

11. Also relevant to the present application are ss 79F and 79H of the EMPA, which are as follows: 79F 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) If the applicant is required to give notice of the application under section 79E, the court must not decide whether or not to refuse the application under this section until at least 14 days after the applicant has given the notice. (4) However, the court may make a decision in a shorter period after the notice has been given if satisfied it is in the interests of justice. (5) 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.

79H Giving of leave to disclose protected confidence (1) After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that— (a) for a civil proceeding—the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; or (b) for a criminal proceeding—the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence. (2) To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document. (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. (5) Leave under this section may be given subject to conditions. (6) If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 79G, and may make the orders about the disclosure of the evidence (other than a statement taken under section 79G (3)) it considers appropriate. Authorities concerning the application of Div 4.4.3 of the EMPA to civil proceedings

12. The history of Div 4.4.3 of the EMPA was considered by McCallum CJ in Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210. In that case, her Honour explained that Div 4.4.3 balances the competing interests of trust and confidentiality in therapeutic counselling and the legitimate interest of parties in obtaining access to counselling notes which may be relevant to the determination of the issues in dispute: Stanley at [11].

13. In Stanley, McCallum CJ granted retroactive (nunc pro tunc) leave for the parties to access protected confidences in circumstances where the plaintiff did not object to disclosure and where, “by commencing these proceedings, she has put the question of her mental health and the reasons for her claimed impaired earning capacity in issue”: Stanley at [35].

14. The application of s 79D to civil proceedings was subsequently considered by McWilliam J in Hall (a Pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113; 394 FLR 223. In Hall, her Honour granted leave for disclosure of protected confidences in circumstances where the plaintiff consented to the grant of leave, and the documents would likely affect the outcome of the case.

15. In so ordering, McWilliam J observed that the Australian Capital Territory differs from Australian jurisdictions such as New South Wales, the Northern Territory and Victoria, in which statutory regimes for the protection of confidential communications either apply only to specified criminal proceedings or specifically exclude civil proceedings where the protected confider consents to disclosure: Hall at [15] - [16]. Her Honour also observed that the application of Div 4.4.3 to civil proceedings where there is consent to disclosure also appears to be a “direct contradiction” of the statutory obligations in Pt 5.3 of the Civil Law (Wrongs) Act 2002 (ACT), which requires plaintiffs to provide their medical and treatment records before commencing personal injury proceedings: Hall at [18].

16. The application of Div 4.4.3 to civil proceedings was not squarely challenged in either Stanley or in Hall. The application of the Division to civil proceedings was similarly not the subject of challenge in Smith (a pseudonym) v Australian Capital Territory [2025] ACTSC 345 or Baker (a pseudonym) v Commonwealth [2025] ACTSC 506. Submissions

17. In helpful written submissions filed in advance of the hearing of the application, counsel for the plaintiff informed the Court that his researches had not located any authorities that address the present circumstances, namely where the cause of action is unrelated to any conduct that might constitute a sexual or family violence offence and where a party contended that the protected confidence regime is not engaged (in other words, where the issue now raised required the Court’s determination).

18. The plaintiff’s counsel continued: Simply put, unless the scope of the Regime is limited in the way contended for by the plaintiff, then it will apply inter alia to all civil proceedings for personal injury damages in circumstances where: a. At any time, a ‘counselling communication’ has been generated in relation to the plaintiff – eg: s/he has at [any] time spoken to a ‘counsellor’ (s 79) who made clinical notes regarding the consultation; b. Completely independently of the counselling (ie: where the counselling did not pertain to the relevant sexual or violent conduct in any way), the plaintiff alleges s/he has ever been the victim of a sexual or family violence offence (s 79A(2)); c. Regardless of the fact: (i) No allegation is made against the defendant of any sexual or violent conduct; and (ii) No allegation is made against the defendant of any psychological injury at all.

19. In written and oral submissions, the plaintiff’s counsel placed reliance on the headings of the Chapter 4, Part 4.4 and Div 4.4.3. He submitted that the scope of the Division was to be limited to those claims “which arise from or otherwise involve conduct which falls within the scope of the Headings (such as the claims arising from alleged sexual abuse to which virtually all of the Supreme Court authorities relate)”.

20. In so submitting, the plaintiff’s counsel accepted that both the text and policy of the Division did not support this construction. He acknowledged that the construction of the Division which he advanced required “an awful lot of work” on the part of the headings. Nonetheless, he submitted that there is a need to avoid “unintended consequence[s]”. In particular, he contended: … [the] unintended consequence is not merely the disconnect between the subject matter of the proceeding and something in the nature of sexual abuse for which the relevant claimant has sought counselling, but beyond that there is a further disconnect between sexual abuse and the current example and the counselling that the relevant person seeks out. So it is because – as the provision makes clear, it matters not whether the abuse is discussed in the counselling communication. It is enough that someone at some point ever alleges that he or she was the victim of abuse on the one hand and, completely separately from that, consults a counsellor in relation to family breakdown or psychological stressors of a completely unrelated nature relevantly to the current circumstances, psychological consequences of a physical injury suffered at work.

21. The plaintiff’s counsel informed the Court that there is legislation presently before the ACT legislature which, if passed, will have enable the protected confider to consent to use of the material in civil proceedings: Family, Personal and Sexual Violence Legislation Amendment Bill 2025. However, that Bill has not yet received legislative assent and is still before the assembly.

22. In the alternative to the declaration sought, counsel for the plaintiff submitted that, if the protected confidences regime does apply, the Court should grant the parties leave to disclose and use the documents under Div 4.4.3, because the legitimate forensic purpose test is readily met and the parties are in agreement that the s 79H(3) factors weigh in favour of granting access.

The proper construction of Division 4.4.3 of the EMPA

23. Div 4.4.3 of the EMPA is not clearly drafted.

24. As McWilliam J observed in Hall at [8], Div 4.4.3 is located in Chapter 4 of the EMPA, which is headed “Sexual, violent and family violence offence proceedings”. Part 4.4 has the heading “Special requirements—sexual offence and family violence offence proceedings” and Division 4.4.3 is similarly headed “Sexual and family violence offence proceedings—protection of counselling communications”. The clear impression that is created by each of these headings is that the protected confidence regime does not apply to civil proceedings.

25. However, as McWilliam J continued, s 79D expressly applies the immunity “in relation to a proceeding”: Hall at [13] (emphasis added). The term “proceeding” is further expressly defined in s 79 of the EMPA to include civil, as well as criminal, proceedings. There is no textual foothold in the definition for the limitation advanced on behalf of the plaintiff.

26. The purpose of Div 4.4.3 also supports this textual reading. As McCallum CJ observed in Stanley at [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.

27. The protection of the therapeutic counselling relationship may be just as threatened by disclosure and use in civil proceedings as in criminal proceedings.

28. This protective purpose would also not be satisfied by the more circumscribed limitation suggested by the plaintiff, namely, to civil proceedings which arise from or otherwise involve sexual or family violence. Indeed, there may be a heightened need for the protection of counselling records in civil cases which do not involve allegations of sexual or family violence conduct. Where documents make reference to protected confidence material, but that material is otherwise not immediately relevant to the issues in dispute between the parties, the need for court supervision of the disclosure and use of those documents concerning these matters is heightened, not lessened. Rather, the real issue, as identified by McWilliam J in Hall (and in the Family, Personal and Sexual Violence Legislation Amendment Bill), is whether the protected confider consents to disclosure. Where the protected confider consents, any damage to the therapeutic relationship is considerably ameliorated.

29. In this respect, it may also be noted that the application of Div 4.4.3 to civil proceedings does not prohibit the disclosure and use of counselling documents falling within the scope of s 79A in civil proceedings. All that is required is that the Court’s leave be obtained prior to disclosure and/ or use of the documents in the proceedings.

30. In short, both text and purpose support a construction of Div 4.4.3 of the EMPA to all civil proceedings. The only matter which does not support this construction are the relevant headings to the relevant Chapter, Part and Division of the EMPA (see at [24] above). Of course, chapter, part and division headings form part of an Act: s 126(1) of the Legislation Act 2001 (ACT). However, it is well established that “where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment”: Silk Brothers Pty Ltd v State Electricity Commission of Victoria [1942] HCA 2; 67 CLR 1 at 16, quoting Bennett v Minister for Public Works (NSW) [1908] HCA 50; 7 CLR 372 at 383.

31. Sections 79 and 79D clearly and unequivocally provide that Div 4.4.3 applies to all civil proceedings. There is no warrant for reading down those clear and unequivocal words. Until such time as Div 4.4.3 is amended, it will be necessary for parties in civil proceedings to obtain the Court’s leave before protected confidences are disclosed or used, even where the protected confider consents to disclosure and use of the communications.

32. Accordingly, the declaration sought on behalf of the plaintiff, namely that “the provisions of Division 4.4.3 of the [EMPA] do not apply to what would otherwise be ‘protected confidences’ per s 79A(1) of the [EMPA]” must be refused. The plaintiff’s alternative application

33. In the alternative, the plaintiff seeks an order that the plaintiff and the defendant be given leave to disclose and use protected confidences in the proceedings.

34. The procedure to be followed where leave is sought to disclose and use protected confidences under Div 4.3.3 has been set out by McWilliam J in Hall at [33] - [49]; by McCallum CJ in Stanley at [13] - [25] and by Mossop J in R v Chute (No 5) [2019] ACTSC 52 at [3] - [4]. As those decisions make clear, there are three stages at which leave must be sought: first, to compel production of the protected confidences to the Court; second, to inspect and make use of the protected confidences; and third to adduce the evidence in the proceedings.

35. In order for leave to be granted at the first stage, it is necessary for the issuing party to satisfy the Court that there is a “legitimate forensic purpose” for seeking leave. Section 79F(2) provides that, in order 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.

36. Section 79H(1)(a) provides that the court may give leave for disclosure in a civil proceeding if the court is satisfied that “the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence”. In making this decision, the court must have regard to the considerations listed in s 79H(3) of the EMPA.

37. Both parties agree that the requirement for a legitimate forensic purpose is satisfied and that the considerations in s 79H(3) weigh in favour of disclosure. I will hear the parties further as to the procedure that should be adopted by the Court before conducting a preliminary examination of the documents. Orders

38. The orders of the Court are: (1) The application for a declaration that the provisions of Division 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) do not apply to what would otherwise be the plaintiff’s “protected confidences”, as defined by s 79A of the Evidence (Miscellaneous Provisions) Act 1991, is refused.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker. Associate: Date: 10 June 2026