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 been sought by either party before the documents containing the protected confidences were obtained, inspected or disclosed.

8․The parties now seek orders in order to regularise the position.

Decision

9․I am satisfied, for the purpose of s 79F, that there is a legitimate forensic purpose in the obtaining and disclosure of the documents. In particular, the documents will be relevant to the following matters which are in issue: whether and how the incident occurred; the extent of the plaintiff’s injuries and disabilities; the extent to which the plaintiff’s injuries and disabilities were caused and/or exacerbated by the incident; and the quantum of the plaintiff's claim.

10․In those circumstances, it is appropriate to make an order pursuant to s 79D, nunc pro tunc, in relation to the disclosure of the documents. So far as the preliminary examination required under s 79G is concerned, I have undertaken that exercise. Section 79G(8) provides that a record of the preliminary examination must be made, but must not be made available for public access. The legislation does not make clear what the reference to “public” in “public access” means.

11․For the purpose of s 79H, I am satisfied that the public interest in ensuring the proceedings are conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidences in the documents. I have taken into account the matters set out in ss 79H(3)(b)‑(h), but I have also placed principal reliance upon the consent of both parties and the obvious need to have access to the documents to fairly prepare and run the case.

12․For those reasons, I will make orders substantially in the terms set out in the application in proceedings.

13․I observe, finally, that a review of the provisions relating to the disclosure of protected confidences may be appropriate in light of the operation of those provisions since their enactment. It seems eminently possible in civil cases, where a party consents, not to have a legislative regime which imposes upon them and the court the rigid process currently required under the Act. Those processes do not seem to accommodate the circumstance where the party who would be affected by the disclosure accepts, for the purpose of the proceedings, that the disclosure of the records is necessary and consents to their disclosure.

Orders

14․The orders of the Court are:

(1)Leave is granted nunc pro tunc under s 79D(3) of the Evidence (Miscellaneous Provisions) Act 1991 to compel production of the documents containing protected confidences listed in Exhibit KLJ‑1 to the affidavit of Katherine Law-Jamieson affirmed 7 February 2025.

(2)Leave is granted nunc pro tunc under ss 79D(2) and 79H of the Evidence (Miscellaneous Provisions) Act 1991 to inspect, disclose and rely upon for the purposes of these proceedings the documents containing protected confidences listed at Exhibit KLJ‑1 to the affidavit of Katherine Law‑Jamieson affirmed 7 February 2025.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: