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[2026] ACTSC 282
Supreme Court of the ACT
2026-08-06
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 (No 2) Citation: [2026] ACTSC 282 Hearing Date: 22 May 2026, 26 June 2026 Decision Date: 6 August 2026 Before: Muller J Decision: See [17] Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – Application for leave to disclose protected confidences – mandatory considerations in granting leave – meaning of counselling communication – relevance of consent to disclosure –– leave granted Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79, 79A, 79D, 79G, 79H, 79I Cases Cited: Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210 Parties: TJ (a pseudonym) (Plaintiff) Australian Capital Territory (Defendant) Representation: Counsel J Randall (Plaintiff) N Oram (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) ACT Government Solicitor (Defendant) File Number: SC 147 of 2025 MULLER J:
In 2022 TJ gave birth to her second child 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 her 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). I made orders previously on a retroactive basis granting leave to request those records and preserving any orders for use and disclosure of the records until such time as the court had opportunity to conduct a preliminary examination within the meaning of s 79G of the EMP Act.
In the interim the Territory made its own application for leave to seek, disclose and rely on additional material. I made orders giving leave to issue subpoenas for production to additional medical service providers being: (a) Therapy House; and (b) Wodonga Medical Centre.
I otherwise deferred the applications insofar as they sought leave to disclose and rely on records produced, including those produced by ACT Health and Canberra Health Services. Records have now been produced. I have undertaken a preliminary examination of the documents from ACT Pain Centre, Ochre Health Medical Centre, Therapy House, Wodonga Medical Centre, the Canberra Hospital and Canberra Health Services. The records produced comprise in excess of 3000 pages in total.
The parties now seek leave pursuant to ss 79D and 79H of the EMP Act to inspect and disclose for the purposes of the proceedings the records produced, including the protected confidences, and to rely on the material for the purposes of the proceedings.
The stages at which leave is required
In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210 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.
Orders are now required to deal with the second stage of the process, following the court’s preliminary examination of the documents.
Is leave required to inspect and disclose the records?
The records produced contain references to family violence offences within the meaning of the EMP Act. As the references are made in the context of the provision of medical services, I am satisfied the records are likely to meet the definition of a counselling communication in s 79A of the EMP Act. As a consequence, the counselling communications are protected confidence evidence for the purposes of s 79 of the EMP Act.
Leave is therefore required for their use and disclosure pursuant to the test set out in s 79H(1)(a) of the EMP Act: 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; Should leave be granted to disclose the documents?
The mandatory considerations to be applied in weighing whether disclosure is in the public interest are contained in s 79H(3) of the EMP Act: (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.
The list is not exhaustive, and each case must be assessed with reference to its particular facts as there may be important public interest considerations emerging in the context of the particular case. With reference to the mandatory criteria, I have identified the following matters of significance in this case: (a) TJ consents to the use and disclosure of the medical records containing the protected confidence evidence. It is her privacy that is most significantly impacted by use and disclosure of the material. (b) TJ brings these proceedings for personal injury asserting both physical and psychological injury as a consequence of the standard of medical care she received at the Canberra Hospital. To that end she has secured expert evidence from an obstetrician and gynaecologist, and from a psychiatrist. In each case, those experts have been given access to the subject records, and the records have been relied upon in forming the opinions the experts have expressed. It is reasonable to expect the Territory will wish to brief its own experts to provide evidence responsive to the opinions of the experts retained by TJ. For completeness those experts will need to have the benefit of all the material relied upon by TJ’s experts in formulating their opinions. (c) Where the proceedings brought by TJ seek damages for, amongst other things, psychological injury, and where the records for which disclosure is sought contain references to other life events that may bear on TJ’s psychological symptom complex, the evidence will have a substantial probative value to a fact in issue in the proceedings. No comparable evidence dealing with the matters addressed in the medical records has been identified. I am therefore satisfied disclosure of the records is likely to affect the outcome of the case. (d) There is no suggestion of any discriminatory belief or bias underpinning the request for disclosure. (e) There is no indication the information contained in the medical records is likely to be available from another source not containing protected confidence evidence. (f) I have had due regard to the importance of the protection of protected confidence disclosures, so victims of family violence and sexual abuse are not discouraged from making such disclosures, or from seeking treatment for the consequential health impacts of events of violence and abuse.
After considering the matters identified above, I am satisfied the public interest in ensuring the proceedings are conducted fairly by permitting the use and disclosure of the subject records outweighs the public interest in preserving their confidentiality. An exception applies in relation to the records produced by Therapy House. The form of some of the records is in a font so small it is impossible to read them. The records also contain extensive handwritten notes that have the appearance of being a record in a foreign language, perhaps Persian or Farsi with reference to TJ’s cultural background. As the records I have just described are in a form preventing me from discerning their import, I cannot be satisfied the public interest test is met in relation to those records. I therefore decline to grant leave for their use and disclosure.
I consider it appropriate with reference to the nature of the records to make ancillary orders limiting the possible harm arising from disclosure of the protected confidence evidence.
The application made by the Territory seeks additional orders for leave to “rely on” the documents subject to any later rulings as to admissibility. The language of section 79H(1) of the EMP Act extends only to leave for disclosure of the protected confidence evidence. The sense in which the word, rely, is used is unclear. Where it is used to ensure the party granted leave is permitted to provide the records to an expert so they may be relied upon in preparing a report, its use is superfluous as such reliance is covered by the giving of leave to disclose the records. Where it is used in the sense of enabling the tendering of the protected confidence evidence in the proceedings as envisaged by s 79D(3) of the EMP Act I am of the view that is properly a question for the trial judge. I therefore decline to make any orders giving leave to rely on the protected confidence evidence. Orders
I make the following orders: (1) Leave is granted, nunc pro tunc, pursuant to s 79H of the EMP Act to inspect and disclose in and for the purposes of this proceeding protected confidence evidence produced under subpoena or otherwise by the following entities: (a) ACT Pain Centre; (b) Ochre Health Medical Centre; (c) Wodonga Medical Centre; (d) the Canberra Hospital and; and (e) Canberra Health Services. (2) Leave to disclose the records produced by Therapy House is refused. (3) Until further order of the court, the publication of: (a) the name of the plaintiff; (b) information which discloses the identity of the plaintiff; (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 EMP Act; is forbidden under s 79I of the EMP Act. (4) 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 to these proceedings or their legal representatives. (5) A pseudonym of “TJ” is applied to the name of the plaintiff. (6) The costs of the application are costs in the cause.
I certify that the preceding seventeen [17] 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 (No 2)