Summerrell v Koomarri (No 2)

Following an oral hearing on 14 April 2026, I delivered judgment refusing the declaration sought, and indicated that I would hear the parties further as to the procedure that should be adopted by the Court before conducting a preliminary examination of the documents under s 79G of the EMPA.

On 11 June 2026, the plaintiff provided written submissions, which explained that whilst the personal injuries that are the subject of the current proceedings do not arise from any conduct which might constitute a sexual, violent or family violence offence, “counselling communications” are contained within with the clinical records produced by Interchange Health Co-Operative Limited, Conder Surgery, Kambah Village Medical Centre and Canberra Health Services (“the records”). The written submissions further explained that the plaintiff has sought treatment from doctors at each of these entities, for physical and psychological health conditions, including injuries which are the subject of the current proceedings.

The written submissions also explained that the defendant alleges that its lay witness evidence conflicts with the history of injury reported by the plaintiff to her medico-legal experts. Without access to the records of the treatment provided, the defendant is unable to make a proper assessment of its liability, or the extent of any liability, to the plaintiff. For this reason, if leave is not granted, the defendant would also be prevented from securing its own, fully informed, medical opinion in advance of the hearing.

In those circumstances, I was satisfied the contents of the records would assist both parties in the preparation of their respective cases for hearing, and ensure that the proceedings are conducted fairly. Accordingly, I was satisfied that the plaintiff had established a legitimate forensic purpose for seeking leave: s 79F(1) of the EMPA. I was also satisfied that there is an arguable case that the evidence in relation to which the leave was sought would materially assist the plaintiff’s case in the proceeding: s 79F(2)(b).

Having so concluded, I conducted a preliminary examination pursuant to s 79G of the EMPA.

On 25 June 2026, I heard further oral submissions on behalf of the plaintiff. I indicated that, whilst I was satisfied that leave should be granted to the parties to disclose the records insofar as they contained information concerning the plaintiff’s treatment for the injury giving rise to the present proceedings, I had concerns about the disclosure of the parts of the documents which made particular reference to sexual or family violence offences. Noting that the plaintiff did not allege that the personal injuries which are the subject of the current proceeding arise from any conduct which might constitute a sexual, violent or family violence offence, I queried whether the grant of leave should be limited to documents which redacted any such references.

On behalf of the plaintiff, it was explained that the case involves complex issues relating to physical and psychological injuries which cannot be considered in isolation from the complainant’s full medical history. It was submitted that limiting access may present an incomplete picture and difficulties for assessing the plaintiff’s condition.

In those circumstances, having considered each of the matters set out in s 79H(3) of the EMPA, and particularly noting the consent of the plaintiff to disclosure of the documents, I was satisfied that the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidences.

Accordingly, I made the following orders: (1) Retrospectively, and in accordance with s 79D(3) of the EMPA, for the records to be produced in this proceeding, including to the Court for the purposes of the preliminary examination required by s 79G of the EMPA; (2) In accordance with ss 79D(2) and 79H(1) of the EMPA, the unredacted records to be disclosed for the purposes of, and in connection with this proceeding; (3) The costs of this application to be costs in the cause.