BJT v Australian Capital Territory - [2025] ACTSC 69

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	BJT v Australian Capital Territory
Citation:	[2025] ACTSC 69
Hearing Date:	28 February 2025
Decision Date:	28 February 2025
Before:	Mossop J
Decision:	See [14]
Catchwords:	EVIDENCE – GENERAL – Application for leave nunc pro tunc to compel documents containing protected confidences – where leave not initially sought due to inadvertence by both parties – where both parties consent – where legislation requires court’s satisfaction of certain matters despite parties’ consent – appropriate to grant leave as sought
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79D, 79F, 79G, 79H
Parties:	BJT ( Plaintiff) Australian Capital Territory ( Defendant)
Representation:	Counsel J Ronald ( Plaintiff) K Weir ( Defendant)
Solicitors Blumers Personal Injury Lawyers ( Plaintiff) ACT Government Solicitor ( Defendant)
File Number:	SC 498 of 2023

MOSSOP J:

Introduction

1․This is a joint application in proceedings filed by the defendant on behalf of both the plaintiff and defendant on 10 February 2025.
2․The parties seek leave nunc pro tunc to compel the production of documents containing protected confidences pursuant to s 79D(3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Those documents are listed at Exhibit KLJ‑1 to the affidavit of Katherine Law‑Jamieson dated 7 February 2025.
3․The parties also seek leave nunc pro tunc to inspect, disclose and rely upon those documents for the purposes of these proceedings pursuant to ss 79D(2) and 79H of the Evidence (Miscellaneous Provisions) Act.

Grounds of application

4․The context to this application in proceedings is identified in the grounds set out in the application, and includes that the plaintiff pleads that the defendant is liable in negligence for injuries and disabilities arising from an alleged incident of sexual abuse perpetrated against him in about 2007 while he attended a public school run by the defendant.
5․The plaintiff is described as having an “extensive and complex psychiatric history”, for which he has “received extensive counselling and other treatment”. During his treatment, the plaintiff made a number of communications to persons providing him with care in circumstances that give rise to a reasonable expectation of confidentiality. Those communications are said in the application to be “directly relevant to … the matters which are in issue in the proceedings”.
6․The parties are already in possession of a number of medical records concerning the plaintiff, as well as expert evidence served by the plaintiff to support his claim. Some of the documents have already been disclosed by both parties in briefs to expert witnesses in the proceedings. Further, the plaintiff's solicitors have in their possession documents produced by Resolution Psychology under a notice of non-party production — documents which have not yet been served on the defendant. Collectively, those documents are listed in an exhibit to the affidavit of Katherine Law‑Jamieson.
7․The operation of s 79D of the Evidence (Miscellaneous Provisions) Act had not been appropriately considered by the parties until approximately December 2024, with the result that the leave of the court had not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ACTSC 69
Decision Date: 28 February 2025

CaseChat Overview and Summary

BJT sought leave from the Federal Court to compel the Australian Capital Territory to produce documents containing protected confidences. This application was made nunc pro tunc, meaning it was requested after the relevant time had passed. The reason for the delay was inadvertent on both sides, and both parties consented to the late application. The central issue before the court was whether, despite the consent of both parties, the court should grant the leave as sought, given that the relevant legislation required the court’s satisfaction of certain matters.

The court acknowledged the general rule that consent between parties can facilitate the resolution of procedural matters. However, the court noted that the specific legislation in question mandated that the court be satisfied with certain conditions before granting leave. Despite the consent, the court was obligated to independently assess whether these statutory criteria were met. The court found that all statutory requirements were indeed fulfilled and, considering the inadvertent nature of the delay and the consent of both parties, granted the leave as sought. The court emphasised that its decision was guided by the statutory obligations and the practical implications of the inadvertent delay.

In accordance with the court’s decision, leave was granted nunc pro tunc to compel the production of the documents containing protected confidences. This ruling ensured that the legal process was followed correctly, despite the procedural lapse, and allowed for the resolution of the underlying dispute in a manner consistent with the statutory framework.

Orders

Orders of the court

See [14]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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