C, Re v O, Cl - [2014] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge)
C, RE v O, CL
[2014] SASC 83
Judgment of The Honourable Justice Bampton
27 June 2014
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
Appeal from refusal of a District Court Judge to release a party from the implied undertaking to use documents disclosed in civil proceedings only for the purposes of those proceedings – notes of psychologist disclosed by respondent which appellant seeks to use in criminal proceedings – issue of whether Division 9-Protected Communications Evidence Act 1929 (the Act) applies to the psychologist’s notes – s 67E and s 67F should have been complied with in the civil proceedings.
Held: to release the applicant from the implied undertaking to allow him to use knowledge of the contents of the psychologist’s notes in the criminal proceedings would subvert the operation of and policy underpinning Division 9 of the Act – appeal refused.
Evidence Act 1929 (SA) s 4, Div 9, s 67E, s 67E(1), s 67E(2)(b), s 67E(3), s 67F, s 67F(1)(c), s 67F(2)(a), s 67F(2)(b); District Court Civil Rules 2006 (SA) r 160, referred to.
Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 344; R v R, GJ (2009) 105 SASR 506; R v Basha (1989) 39 A Crim R 337, considered.

C, RE v O, CL
[2014] SASC 83
Civil: Appeal to a Single Judge

BAMPTON J: This is an appeal against the refusal of a District Court Judge to release the appellant from the implied undertaking to use certain documents disclosed by the respondent in a District Court action (the civil proceedings) only for the purposes of those proceedings.
In these reasons I shall refer to the appellant (who is the defendant in the civil proceedings) as C and the respondent (who is the plaintiff) as O.
As the subject matter of this appeal concerns the application of Division 9—Protected Communications of the Evidence Act 1929 (SA) (the Act), I ordered that the hearing of the appeal be in closed court and that the transcript of the proceedings be placed in an envelope and sealed marked only to be opened by a Judge of the Supreme Court.
Background
On 15 March 2012, C was convicted following a trial of persistent sexual exploitation of a child committed against O. On 7 August 2012, C was sentenced to 12 years’ imprisonment with a non-parole period of six years. During sentencing submissions a Victim Impact Statement of O was read to the Court. In that statement O made reference to having undergone psychological treatment.
On 29 November 2012, O commenced District Court proceedings seeking damages for the injuries she suffered as a result of the sexual offending committed against her by C. A defence was filed on 22 May 2013.
In February 2013, C’s solicitors wrote to O’s solicitors making reference to the Victim Impact Statement that…

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.

Continue reading C, Re v O, Cl

Details

AGLC: C, Re v O, Cl [2014] SASC 83
Case: [2014] SASC 83
Decision Date: 27 June 2014

CaseChat Overview and Summary

In the matter of C, Re v O, Cl, the appellant, C, sought to use documents disclosed during civil proceedings in subsequent criminal proceedings. The central issue was whether the psychologist’s notes disclosed by the respondent, O, were protected by Division 9 of the Evidence Act 1929 (SA), and consequently, whether C could be released from the implied undertaking to use the disclosed documents only for the purposes of the civil proceedings. Specifically, the court needed to determine if the notes of the psychologist, Deborah Lawton, and the notes of the treating psychologist, Lina Sohner, fell under the protections outlined in Division 9 of the Act.

The court held that releasing C from the implied undertaking to use the contents of the psychologist’s notes in the criminal proceedings would undermine the operation and policy of Division 9 of the Act. The court considered the implications of allowing the notes to be used in a context other than the civil proceedings for which they were disclosed, which would have contravened the spirit of the Act that protects such communications. Furthermore, the court found that the provisions of sections 67E and 67F of the Act, which should have been complied with in the civil proceedings, further supported the protection of the psychologist’s notes. Consequently, the appeal was dismissed, and C was not permitted to use the disclosed psychologist’s notes in the criminal proceedings.

The final orders of the court reflect the refusal of the appeal and the maintenance of the restrictions on the use of the disclosed documents, ensuring that the integrity of the protections under Division 9 of the Evidence Act 1929 (SA) is upheld.

Orders

Orders of the court

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Background

Background to the litigation

As the subject matter of this appeal concerns the application of Division 9—Protected Communications of the Evidence Act 1929 (SA) (the Act), I ordered that the hearing of the appeal be in closed court and that the transcript of the proceedings be placed in an envelope and sealed marked only to be opened by a Judge of the Supreme Court. Background On 15 March 2012, C was convicted following a trial of persistent sexual exploitation of a child committed against O. On 7 August 2012, C was sentenced to 12 years’ imprisonment with a non-parole period of six years. During sentencing submissions a Victim Impact Statement of O was read to the Court. In that statement O made reference to having undergone psychological treatment. On 29 November 2012, O commenced District Court proceedings seeking damages for the injuries she suffered as a result of the sexual offending committed against her by C. A defence was filed on 22 May 2013. In February 2013, C’s solicitors wrote to O’s solicitors making reference to the Victim Impact Statement that had alerted C’s solicitors to the fact that O had seen a psychologist and making a request for disclosure of all medical and psychology case notes or records pertaining to O. O’s solicitors then sought and obtained a report from the psychologist, Deborah Lawton. Ms Lawton, who had not previously been consulted by O, prepared her report dated 3 September 2013 following an interview with O on 31 July 2013. Ms Lawton refers in her report to O’s solicitors providing her with the following:·Victim Impact Statement of O;·Police Statement of O;·District Court judgment; and·Progress notes of O’s treating psychologist, Lina Sohner, dated 11 June 2009 to 26 July 2011 (the Sohner notes). In response to the following questions asked by O’s solicitor:Prior to the offending by [C], did our client suffer from any psychological or psychiatric condition? If so, did the offending commencing in about 1992 aggravate or contribute to her condition?and:Our client has instructed us that she was also sexually abused by [others]. Can you please give your opinion on what impact that offending had on our client?Ms Lawton discussed in her report allegations made by O that she was also sexually abused by [others]. Pursuant to rule 160, O’s solicitor, under cover of a letter dated 25 September 2013 addressed to C’s solicitor, served copies of the Lawton report and the Sohner notes (the Documents). As C’s solicitor was on leave until 21 October 2013, the letter was not seen by her until 21 October 2013. Upon her return, the solicitor forwarded the Documents to C without reading them, Having done so, the solicitor then read the Documents and became aware that they contained information regarding other alleged sexual abusers which neither C nor his legal representatives had been aware of at the time of his criminal trial. Consequently the solicitor received instructions from C to file proceedings in the Supreme Court for an extension of time within which to appeal and an application for permission to appeal against his conviction. Those proceedings are part heard before Parker J. The interlocutory application FDN 16

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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