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[2026] ACTSC 168
Supreme Court of the ACT
2026-05-22
Muller J
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: TJ v ACT Citation: [2026] ACTSC 168 Hearing Date: 22 May 2026 Decision Date: 22 May 2026 Before: Muller J Decision: See [15] Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – Application for leave to issue subpoenas nunc pro tunc – where material has already been produced – mandatory considerations in granting leave – plaintiff’s application – leave granted Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79D, 79G, 79H Cases Cited: Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 Parties: TJ (a pseudonym) (Plaintiff) Australian Capital Territory (Defendant) Representation: Counsel K Nasser (Plaintiff) B Tan (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) ACT Government Solicitor (Defendant) File Number: SC 147 of 2025 MULLER J: (REVISED EX TEMPORE REMARKS)
TJ gave birth to her second child in 2022 at the Canberra Hospital. She says the medical services she received as they related to the birth did not meet the requisite standard of care and caused her injury. Her injury claim extends to a claim for psychological injury.
TJ sues the Territory as the entity responsible for the Canberra Hospital.
In preparing the case TJ’s solicitor requested access to medical treatment records from Ochre Health Medical Centre and ACT Pain Centre. The records were obtained via an authority to release records signed by TJ.
Upon receipt of the records, it became apparent they contained material falling within the definition of protected confidences in the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act).
TJ now seeks leave pursuant to ss 79D and 79H of the EMP Act to require production of the documents produced. Leave is sought on a retroactive basis.
TJ moves on an application in proceeding lodged on 29 April 2026 and reads the affidavit of Isobel Kate Hall affirmed on the same date.
The stages at which leave is required
In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157, McCallum CJ identified three stages at which leave is required as follows: (a) leave to compel production of protected confidences to the court; (b) leave to inspect and make use of the protected confidences after preliminary examination by the court; and (c) leave to adduce evidence of or to tender the protected confidences in the proceedings.
In this matter the parties are now effectively at the second stage.
Is leave appropriate?
Section 79D(3) of the EMP Act provides a person cannot be required whether by subpoena, application, notice or any other procedure to produce a document recording a protected confidence unless the court gives leave. As such, even though the documents in this case were produced with the use of an authority from the client, and even though the solicitors were unaware of the existence of the protected confidences, leave is still required for the first stage of the process, although it has effectively passed.
For the purpose of assessing whether leave is appropriate at this stage, it is necessary to be satisfied of the existence of a legitimate forensic purpose for seeking the documents. The test for a legitimate forensic purpose is in two parts. First, the applicant must identify a legitimate forensic purpose for seeking the leave and second, they must satisfy the court there is an arguable case the evidence in relation to which the leave is sought will materially assist the applicant’s case in the proceedings.
TJ submits the legitimate forensic purpose is essentially the proper presentation of her case for hearing, noting her prior exposure to domestic violence and its psychological sequelae creates the prospect of a causation issue in relation to the mental health effects upon her of the subject medical negligence claim. As to the second part of the test it is satisfied where an arguable case is established for the documents produced materially assisting the applicant’s case. As the court identified in Stanley (a pseudonym), material assistance does not necessarily mean evidence advancing a party’s case. It may come in the form of evidence corroborating the claims made by a plaintiff, or it may not assist in that way, but provide a better understanding of the impacts of prior events, which knowledge is of assistance in properly quantifying a claim and promoting resolution.
I am satisfied in this case TJ has established a legitimate forensic purpose for seeking production of the documents. In that regard it will be necessary to provide leave on a retroactive basis.
The documents in question have now been produced to the court, and an oral application is made for the court to proceed with the conduct of a preliminary inspection in accordance with the requirements of s 79G of the EMP Act as a precursor to determining whether it is appropriate for the giving of leave to inspect and disclose the documents.
I note the parties have filed a general form of consent order, signed by each of the parties, but in the circumstances I will vary the orders sought.
Orders
I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 6 August 2026
TJ
ACT