Central Adelaide Local Health Network Inc v Whitehouse - [2024] SASCA 22

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
CENTRAL ADELAIDE LOCAL HEALTH NETWORK INC v WHITEHOUSE
[2024] SASCA 22
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
14 March 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - PUBLIC INTEREST IMMUNITY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - IN GENERAL
Appeal pursuant to s 43(1) of the District Court Act 1991 (SA) (‘District Court Act’).

This appeal stems from underlying criminal proceedings in the District Court. The respondent is charged with two counts of aggravated assault, three breaches of an intervention order, one count of attempting to dissuade a witness, and one count of serious criminal trespass in a place of residence.
On 6 April 2023, the District Court issued a subpoena to the applicant, Central Adelaide Local Health Network (‘CALHN’) for medical records of the complainant.
On 14 April 2023, CALHN produced documents in response to the subpoena. The documents contained redactions. CALHN contended that the redacted parts were protected from disclosure by statutory public interest immunity conferred by s 67E(1) of the Evidence Act 1929 (SA) (‘Evidence Act’), being evidence of communications relating to a victim or alleged victim of a sexual offence made in a therapeutic context.
Following various refinements of the claim of statutory public interest immunity, further versions of the documents with fewer redactions were returned on 4 May 2023.
On 5 May 2023, the primary judge ruled on the claims. The judge accepted that the complainant was a victim or alleged victim of a sexual offence. She rejected CALHN’s argument that the communications relating to the complainant’s admissions to hospital and subsequent therapy were made in a ‘therapeutic context’ as that term is defined in s 67D(a) of the Evidence Act. She accordingly found that many of the documents over which the claim was made were not protected communications.
CALHN seeks to appeal against the consequent orders declaring certain of the documents not to be ‘protected communications’. In the alternative, in the event the appeal is incompetent, it seeks relief in the form judicial review in the nature of certiorari quashing paragraph 2 of the orders made by the primary judge on 5 May 2023.
CALHN’s primary complaint is that the judge applied an unduly narrow construction to the meaning of ‘therapeutic context’ as that term is defined in s 67D of the Evidence Act.
Two further issues arose on the appeal. First, CALHN sought to adduce on the appeal further evidence in the form of a psychological report of Dr Paul Furst (the ‘Furst affidavit’) on the basis that this evidence was unable to be adduced within the necessary timeframes in the underlying proceedings.
Second, CALHN is not a party to the underlying criminal proceedings. This raised an issue on the basis on which the appeal was brought pursuant to s 43(1) of the District Court Act.
Held (by the Court), allowing the appeal in part, dismissing the application for judicial review, and holding that certain further documents are protected communications:
1.This case serves as an opportunity for this Court to reiterate the importance of insisting that a party seeking the issue of a subpoena identify expressly and precisely its legitimate forensic purpose. Here, the necessary premise that the documents described in the subpoena serve a legitimate forensic purpose was not tested.
2.While s 67E confers no personal right on CALHN, CALHN had obligations of non-disclosure with respect to the documents sought. Its objection that the relevant power to compel did not extend to certain documents held by it engaged the civil, declaratory jurisdiction of the District Court under s 8(1) of the District Court Act. CALHN had standing to engage that jurisdiction and was thereby a party to that action. CALHN’s appeal is competent.
3.CALHN has not shown that the Furst affidavit could not, with reasonable diligence, have been obtained for use at the hearing. Notwithstanding that, the interests of justice favour admission of the Furst affidavit on the appeal.
4.The definition of ‘therapeutic context’ in s 67D(a)(ii) requires a link between the sexual offending and the purposes of providing psychiatric or psychological therapy to the alleged victim. Whether such a link exists is a matter of evidence. In many cases, affidavit evidence will be necessary to establish a link. Absent assistance of that nature, it will be necessary for the judge to review the material comprehensively, considering it in its full context and taking whatever assistance can be gleaned from that context. A link may be inferred on the basis of what is disclosed. It may be that the document itself, even when read in its broader context, provides insufficient information from which to conclude that the necessary link exists.

Criminal Procedure Act 1921 (SA) s 157; District Court Act 1991 (SA) ss 43(1), 45; Evidence Act 1929 (SA) ss 67D, 67E(1)-(3), 67F(1)-(8); Federal Court Act 1976 (Cth) s 24; Supreme Court Act 1935 (SA) s 50, referred to.
AG (NSW) v Chidgey (2008) 182 A Crim R 536; Alister v The Queen (1984) 154 CLR 404; Baker v Campbell (1983) 153 CLR 52; CDJ v VAJ (No 2) (1998) 197 CLR 172; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 ; Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCR 453; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Draoui v Le & Ors [2021] SASCA 33; Legal Services Commission v JHW (2012) 223 A Crim R 534; Markham v Markham (1880) 16 Ch D 1; Medical Board of SA v Fisher (2000) 76 SASR 242; Mok v New South Wales Crime Commission & Anor [2002] NSWCA 53; Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 344; Re Securities Insurance Co [1894] 2 Ch 410; Reynolds (a pseudonym) v The King [2023] SASC 28; R v C, RE [2015] SASCFC 32; Sadler v Director of Public Prosecution (2021) 138 SASR 190; R v Fandakis [2002] NSWCCA 5; R v R, GJ (2009) 105 SASR 506; R v Saleam (1989) 16 NSWLR 14; R v Young (1999) 46 NSWLR 681; Roberts-Smith v Fairfax Media Publications Pty Ltd (no 15) [2021] FCA 582; Sadler v Director of Public Prosecutions (2021) 138 SASR 190; Sankey v Whitlam (1978) 142 CLR 1; Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23; [Suppressed] [2005] SASC 214; Young v Quin (1985) 59 ALR 225, considered.

CENTRAL ADELAIDE LOCAL HEALTH NETWORK INC v WHITEHOUSE
[2024] SASCA 22
Court of Appeal – Civil: Livesey P, Bleby and David JJA

THE COURT: The primary issues arising on this appeal concern the scope and application of Division 9 of Part 7 of the Evidence Act 1929 (SA) (‘Evidence Act’). That Division enacts a scheme for the protection of a defined class of communications from disclosure in legal proceedings. It does so by legislating the application of public interest immunity. Specifically, s 67E(1) provides:
(1)A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
Further issues arising are whether the appeal is competent and whether this Court should permit the appellant (CALHN) to adduce further evidence on the appeal. As to the competency of the appeal, CALHN also filed an application for judicial review, which it pressed only in the event that the appeal was found not to be competent.
Background
The respondent is charged with two counts of aggravated assault, three breaches of an intervention order, one count of attempting to dissuade a witness and one count of serious criminal trespass in a place of residence. The primary judge found, and it is not in dispute, that the complainant is a victim, or an alleged victim, of a sexual offence. The charges against the respondent do not raise any allegation of a sexual offence.
The conduct the subject of the charges is alleged to have occurred on 11 October 2020 and 29 April 2021. The respondent was arrested and has been in custody since 4 May 2021. Following the committal process, the matter was first listed for trial on 11 April 2023. However, on 6 April 2023, the District Court, on the application of the respondent, issued subpoenas for medical records relating to the complainant’s attendance at, or admission to, various hospitals in Adelaide, within various date ranges. These included a subpoena to CALHN.
The trial date was held until 12 April 2023. CALHN had not answered the subpoena by that date, so the trial was adjourned to 1 May 2023. On 28 April, it was further adjourned to 2 May 2023. On that date, the respondent was arraigned to allow for argument on the voir dire. The primary judge ruled on the subpoena argument on 5 May 2023. The trial date was lost. The respondent has since applied for bail without success. He remains in custody. Counsel advised this Court that it is unlikely a new trial date will be listed before some time in 2025.
The documents sought were described in the subpoena in the following form:
1. Documents regarding [the complainant] and:
·Any diagnosis of mental illness; or
·Any voluntary or involuntary hospitalisations for mental illness/psychosis; or
·Any record of attendance, hospitalisation or treatment between [date range]
The terms of the subpoena are wide. A precise legitimate forensic purpose is not apparent from its terms.[1] There was no attempt to refine the description of the documents required to be produced. No issue having been taken, it is not for this Court to refine the terms of the subpoena. However, the breadth of the subpoena and the lateness of its issue have caused an already delayed trial to be vacated. That is not in the interests of the accused, the complainant or the administration of justice. As the Chief Justice said recently in Reynolds (a pseudonym) v The King:[2]
It is plainly undesirable … to leave charges of major indictable offences unresolved over a two year period. It follows that every person who has a role in the administration of criminal justice has a heavy responsibility to do all that can be done to expedite trials within the constraints of ensuring a fair trial. That obligation commences with police, who must collect and provide evidentiary material as soon as practicable and with prosecutors who must lay charges promptly. Defence lawyers have an ethical obligation to explain the charges and evidentiary material to their clients as soon as is reasonably practicable. If they are too busy to do so quickly, it is their obligation to so inform the accused and to facilitate the transfer of the file to a legal practitioner who can discharge that duty.
[1] See AG (NSW) v Chidgey (2008) 182 A Crim R 536 at [59]-[60]; R v Saleam (1989) 16 NSWLR 14 at 17A, C.
[2] [2023] SASC 28 at [23].
The Director of Public Prosecutions, who made submissions as an interested party on the appeal, submitted that the present case served as an opportunity for this Court to reiterate the importance of courts insisting that any party seeking the issue of a subpoena identify, expressly and precisely, its legitimate forensic purpose. The importance of doing so cannot be doubted. However, it is the professional responsibility of defence lawyers in the first instance to make that identification without being forced to it by the Court. There is room for legitimate dispute about the appropriate breadth of a subpoena, and prosecutors equally must be alive to the legitimate forensic issues, which will often not be apparent to the recipient of the subpoena.
It will be necessary to return to the timing of the proceedings below, when considering CALHN’s application to adduce further evidence. As it is, the dubious breadth of the subpoena in this case, and the lateness of its issue, have caused the trial to be aborted while collateral proceedings are pursued, including now in this Court, over a large number of documents that require close consideration.
The scheme of Part 7, Division 9
As already noted, Division 9 of Part 7 of the Evidence Act is concerned with ‘protected communications’. Section 67E provides, in its entirety:
67E—Certain communications to be protected by public interest immunity
(1)A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
(2)However, the following communications are not subject to public interest immunity:
(a)     a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or
(b)     a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or
(c)     a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.
(3)A public interest immunity arising under this section cannot be waived by—
(a)the counsellor or therapist; or
(b)a party to the protected communication; or
(c)     the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
Such communications are, under s 67D, ‘protected communications’. Section 67D then also defines the term ‘therapeutic context’:
therapeutic context—a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if—
(a)     the communication is made—
(i)    to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)     for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b)the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
Section 67F then provides for the admission or otherwise of protected communications in proceedings. It is necessary to set out the whole of the section:
67F—Evidence of protected communications
(1)Evidence of a protected communication—
(a)     is entirely inadmissible in committal proceedings; and
(b)     cannot be admitted in other legal proceedings unless—
(i)the court gives permission to a party to the proceedings to adduce the evidence; and
(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and
(c)     is not liable to discovery or any other form of pre-trial disclosure.
(2)On an application for permission to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that—
(a)     the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence; and
(b)     there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
(3)For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:
(a)     to provide written answers to questions;
(b)     to produce written materials relating to the relevant protected communications;
(c)     to appear for oral examination.
Exceptions—
1If the counsellor or therapist who provided the counselling or therapy is an employee, answerable to another (the principal) in the organisation in which the counsellor or therapist is employed, an order under this subsection is to be addressed to the principal unless the court is satisfied that there are good reasons for not taking that course in the circumstances of the particular case.
2An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted.
(4)The following provisions govern the conduct of a preliminary examination:
(a)     the preliminary examination is to be conducted—
(i)    in the absence of the jury (if any); and
(ii)     in a room closed to the public; and
(b)     the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and
(c)     no record of the preliminary examination is to be available for public access.
(5)In deciding whether to grant permission to adduce evidence of a protected communication, the court is to weigh—
(a)     the public interest in preserving the confidentiality of protected communications;
against—
(b)     the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(6)In weighing the above considerations, the court is to have regard to—
(a)     the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;
(b)     the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;
(c)     the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;
(d)     whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;
(e)     the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.
(7)The court is not to grant permission to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(8)If the court decides to grant permission to adduce evidence of a protected communication, it may make ancillary orders—
(a)     to prevent further publication or dissemination of the evidence; or
(b)     for any other purpose the court considers appropriate.
Sub-section 67F(1)(a) renders protected communications inadmissible in committal proceedings altogether. Sub-section 67F(1)(b) then establishes a prohibition on admission in other proceedings and a framework for establishing exceptions to that prohibition. The balance of the section, from s 67F(2) onwards, is highly prescriptive as to the procedures and processes, as well as the test to be applied, for admitting protected communications in exception to the general prohibition. Sub-section 67F(1)(c) provides that evidence of a protected communication is not liable to any form of pre-trial disclosure. It follows that to the extent that the material meeting the description in the subpoena in the present case constitutes protected communications, it is not liable to production on the subpoena.
The ruling of the primary judge

The primary judge inspected the notes and concluded without any difficulty that the complainant was the victim or alleged victim of a sexual offence. She observed that many of the notes had been redacted on the premise that they were protected communications:
By way of example, ambulance records made when the complainant was transferred to hospital were largely redacted, as were notes recording her presentation when seen in a hospital Emergency Department in a situational crisis. It was not clear on many of the documents whether the complainant had actually been seen by a counsellor or therapist as a consequence of her attendance at a health service.
The judge noted the broad approach taken by CALHN as to whether a record evidenced a protected communication:
… in that it is said that the redacted portions were records made for the purpose of allowing others involved in the complainant’s care to understand the history of contact and the progress of her therapy and treatment.
The judge rejected CALHN’s argument that communications that related to the complainant’s admissions and subsequent therapy were made for the purposes of therapeutic management of the complainant’s state of mind and behaviours, and that they were therefore made in the therapeutic context. She accepted that the scope of the protection goes beyond a case where an accused is charged with a sexual offence. However, she did not accept that many of the communications were made either to enable a counsellor or therapist to assess the nature and severity of the trauma suffered or the consequent psychiatric, psychological or emotional harm, or were made for the purposes, or in the course of, psychiatric or psychological therapy provided to the complainant. For that reason, she considered that many of the records were not protected communications.
The judge accepted that some records were protected communications but was not able to identify them with any degree of certainty. She also accepted that there might be a mix of communications that both related to therapy and were for the purposes of a physical examination. She was unable to identify these with certainty and required CALHN to prepare a further volume of those documents that it said fell within the definition. CALHN did so. The respondent then identified the specific documents he challenged as not being protected communications. The judge inspected the documents and concluded:
In my view, some but not all appear to remain in the definition while others do not. Those particular documents, in my view, are not of a nature of protected communications and rather are essentially progress notes recording history and observations made by various health professionals which plainly do not fall within s.67D(a)(i) or (ii), and I have identified those documents.
The judge then set out, in the Order of the Court, the portions of the documents redacted by CALHN that she found were protected documents and those that she found were not, as follows:
1.The redacted portions of the following documents produced by CALHN on 4 May 2023 are ‘protected communications’ for the purposes of s 67E(1) of the Evidence Act 1929 (SA):
1.1. Volume 1, Royal Adelaide Hospital Documents, pages 47-52, 69, 72, 79-80.
1.2. Volume 2, Queen Elizabeth Hospital Electronic Records, page 19.
1.3. Volume 3, Queen Elizabeth Hospital Patient Records, pages 22, 25-27.
1.4. Volume 4, Glenside Medical Records Schedule 1, pages 18-19, 35-40, 45-47, 61-65, 81-86, 97-100, 109-111, 113-114, 115-116, 129-138.
1.5. Volume 5, Glenside Medical Records Schedule 2, pages 13, 21-22.
1.6. Volume 6, Glenside Medical Records Schedule 3, pages 19-26, 41, 60-68, 97-99, 101-106.
2.The redacted portions of the following documents produced by CALHN on 4 May 2023 are not ‘protected communications’ for the purposes of s 67E of the Evidence Act 1929 (SA):
2.1. Volume 1, Royal Adelaide Hospital Documents, pages 56-57, 62-63.
2.2. Volume 2, Queen Elizabeth Hospital Electronic Records, pages 42, 48.
2.3. Volume 3, Queen Elizabeth Hospital Patient Records, pages 37-42, 53-55.
2.4. Volume 4, Glenside Medical Records Schedule 1, pages 22, 23, 25, 104, 106.
2.5. Volume 6, Glenside Medical Records Schedule 3, pages 28, 30, 77-78, 96.
This appeal is against the orders in paragraph 2, above.
The appeal
The grounds of appeal are as follows:
1.The learned trial Judge erred in fact and in law in ordering that the Documents were not protected communications and therefore not protected from disclosure by public interest immunity, pursuant to s 67E(1) of the Evidence Act. Her Honour erred in that she:
1.1    Failed to give adequate reasons for her decision with respect to each of the Documents upon which findings were made.
1.2    Applied an erroneously narrow construction of the phrase “for the purposes, or in the course, of psychiatric or psychological therapy” in s 67D of the Evidence Act.
1.3    Made findings as to whether each of the Documents were made in a “therapeutic context” which were not open to the Court on the face of the materials before it.
Before addressing these grounds, it is necessary to address the challenge to the competence of the appeal and the application to adduce further evidence on the appeal.
Competence of the appeal
The appeal is brought pursuant to s 43 of the District Court Act 1991 (SA) (‘District Court Act’). Sub-section 43(1) provides:
(1)A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
CALHN is not a party to the action constituting the criminal prosecution.
In Sadler v Director of Public Prosecutions (‘Sadler’),[3] an issue arose as to the competence of an appeal from a decision of the District Court holding that certain documents, that had been returned on a subpoena, did not attract legal professional privilege. Police had seized the file of the appellant’s workers compensation solicitor, in furtherance of an investigation into whether the appellant’s workers compensation claim was fraudulent. The Court issued a subpoena for the file at the request of the appellant, whose solicitors then inspected the file and drew up a list of documents over which privilege was claimed. The Commissioner sought an order permitting him to inspect the file, a necessary incident of which was a finding that legal professional privilege did not attach to the documents. The judge upheld certain claims of legal professional privilege but held that the privilege did not attach to certain documents.
[3] (2021) 138 SASR 190.
An issue arose as to the competence of the appeal or, at least, the basis on which the appeal was said to be competent. The appellant relied on s 43, set out above. However, s 45 provides:
45—Non-application to criminal proceedings
This Part does not apply in respect of appeals and reservations of questions of law in criminal proceedings to which Part 6A of the Criminal Procedure Act 1921 is applicable.
Section 157 of the Criminal Procedure Act 1921 (SA) (‘Criminal Procedure Act’), which is in Part 6A, sets out rights of appeal in criminal cases. The appellant’s appeal in Sadler, against the decision that certain documents were not protected by legal professional privilege, did not come within its ambit. However, the Court held that the appeal was competent in any event, as the non-party to the criminal proceeding had, by seeking the orders with respect to claims of privilege, engaged the civil, declaratory jurisdiction of the Court.[4]
[4] Sadler v Director of Public Prosecutions and Anor (2021) 138 SASR 190 at [70].
In reaching that conclusion, the Court took note of the conclusion in LegalServices Commission v JHW,[5] that an accused could not appeal against an adverse decision made in relation to the production of documents on subpoena.[6] However, the Court in that case also concluded that a non-party would have a right of appeal (in respect of a claim of legal professional privilege) against an order made in relation to documents produced under subpoena in criminal proceedings before the Supreme Court, under s 50 of the Supreme Court Act 1935 (SA) (‘SCA’).[7]
[5] (2012) 223 A Crim R 534.
[6] Legal Services Commission v JHW (2012) 223 A Crim R 534 at [54].
[7] Legal Services Commission v JHW (2012) 223 A Crim R 534 at [57].
In the present matter, the respondent did not dispute that a non-party would have a right of appeal against a rejection of its claim of legal professional privilege in response to a subpoena. However, he submitted that the position was different when the objection to production was taken on the ground of public interest immunity. This was on the basis that unlike legal professional privilege, which is a legal right,[8] the statutory public interest immunity (‘SPII’) conferred by s 67E was a duty, and not a substantive legal right inhering in a person.
[8] See, e.g., Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 556.
The respondent accepted that s 67E extended the existing substantive law of ‘privilege’ (necessarily, public interest immunity) to ‘protected communications’.[9] That being the case, the respondent submitted that CALHN has no right that requires protection in the form of declaratory relief. SPII attaches to the communication only. In circumstances where CALHN is not a party to the primary proceedings, the civil jurisdiction is not, in the respondent’s submission, engaged at all.
[9] Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 344 at [12].
This submission invoked, at least implicitly, a statement by this Court in LegalServices Commission v JHW[10] addressing the relationship between the right of appeal under s 50 of the SCA and the code in relation to criminal appeals previously appearing in the Criminal Law Consolidation Act (‘CLCA’), now in s 157 of the Criminal Procedure Act 1921:
The CLCA is a code in relation to appeals by the parties to criminal proceedings against orders made in the course of those proceedings. But we consider that an appeal by [a] person who is not a party to the proceedings, being a person against whom an order is made and whose rights are impeached, is available under s 50 of the SCA.
(Emphasis added)
[10] (2012) 223 A Crim R 534 at 54.
The respondent submitted that CALHN, having no rights impeached, has no right of appeal. This raises questions as to the nature of SPII as a statutory extension of public interest immunity (PII) and who, if anyone, would have a right to appeal against a decision that a communication is not a ‘protected communication’.
It has long been understood that a claim of PII does not arise as between parties.[11] PII has been expressed as a doctrine of the common law:[12]
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it.
[11] See, e.g., Young v Quin (1985) 59 ALR 225 at 227.
[12] Sankey v Whitlam (1978) 142 CLR 1 at 38.
It has also long been recognised that the determination of a claim of PII requires a balancing of conflicting aspects of the public interest. As Gibbs ACJ said in Sankey v Whitlam:[13]
These [conflicting aspects] were described by Lord Reid in Conway v Rimmer[14] as follows:
“There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be provided if justice is to be done.”
(Footnote in original)
[13] (1978) 142 CLR 1 at 38.
[14] [1968] AC 910 at p.940.
Historically, the public interest in non-disclosure was focused on the potential for injury to ‘the nation’ or the ‘public service’ or, using contemporary nomenclature, governmental interest. That framing was approved in Sankey v Whitlam, above, and subsequently in Alister v The Queen.[15] In R v Young, Spigelman CJ said:[16]
‘[p]ublic interest immunity’ is concerned with, and the terminology should be confined to, the conduct of governmental functions.
He went on:
The “public interest”, to which this immunity refers, requires a dimension that is governmental in character. The references to “public interest” in the frequently cited passages from the case law should be so understood … These passages did not intend to encompass every situation in which it could be said that some form of public policy could be served by non-disclosure. In my opinion, it is not correct to treat public interest immunity as if it were a “residual category” of circumstances in which Courts limit access to information on the basis of weighing the public interest in disclosure against any factor that can be described as a “public interest”.
(Citations omitted)
[15] (1984) 154 CLR 404 at 412.
[16] R v Young (1999) 46 NSWLR 681 at 693.
The limitation of the relevant public interest as being ‘governmental’ in character has been criticised and on occasion qualified by giving the notion of ‘governmental function’ a broad reach.[17] Nevertheless, this characterisation of the operative public interest as being (broadly) governmental explains why PII is not considered to have an inter partes character.
[17] See, e.g., Mok v New South Wales Crime Commission & Anor [2002] NSWCA 53 at [19] (Mason P).
The fact that Parliament has chosen to extend, by statute, the reach of the doctrine to a class of communication that could not be said to be ‘governmental’ does not change the character of the doctrine to something that arises as between the parties. As with PII,[18] SPII arising under s 67E cannot be waived.[19] In the case of PII, it is the duty of the Court to prevent the disclosure of a document the production of which would be contrary to the public interest, even if no claim is made.[20] There does not appear to be anything in s 67F of the Evidence Act that alters this with respect to SPII: the communication is either a protected communication or it is not.
[18] Young v Quin (1985) 4 FCR 483 at 486.
[19] Evidence Act 1929, s 67E(3).
[20] Sankey v Whitlam (1978) 142 CLR 1 at 44; Young v Quin (1985) 4 FCR 483 at 485; R v Fandakis [2002] NSWCCA 5 at [39].
The nature of PII is such that any person can make a claim,[21] although practical considerations will tend to dictate who is able to satisfy the Court as to the existence of the relevant public interest. In some cases it will be obvious. In others, the claim will be made by a person with the relevant authority to assert the public interest in non-disclosure. Historically, that was done by a Minister of the Crown or a person with sufficient seniority, such as a chief executive in the public sector or a commissioned police officer of high rank. Nevertheless, it still depended on the nature of the governmental interest being asserted. In Medical Board of SA v Fisher,[22] the Court accepted that the doctrine could extend to information in the possession of the Medical Board, and that the Board was in the position to make the claim, as it was charged with a public responsibility by statute:[23]
It has been held that bodies charged with responsibilities in relation to professional discipline and the maintenance of proper professional standards may be entitled to claim public interest immunity in relation to certain of their functions ... The public interest element in these instances is plain enough. A board such as the Medical Board is charged with important public responsibilities. They include the investigation of unprofessional conduct. There is a clear public interest in the effective performance of these functions. In appropriate cases it will be necessary to uphold claims of public interest immunity where the disclosure of information in the possession of such authorities would be detrimental to the performance of their functions.
(Citations omitted)
[21] Roberts-Smith v Fairfax Media Publications Pty Limited (No 15) [2021] FCA 582 at [5].
[22] (2000) 76 SASR 242.
[23] Medical Board of SA v Fisher (2000) 76 SASR 242 at [47].
Insofar as this statement recognised the appropriateness of the Medical Board making the claim, it is an extension of the observation in Sankey v Whitlam that:[24]
In view of the danger to which the indiscriminate disclosure of documents of this class might give rise, it is desirable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made.
[24] Sankey v Whitlam (1978) 142 CLR 1 at 43.
The critical question for present purposes is the capacity of a person, who has intervened and been heard, to appeal in the event that a Court decides against their asserted claim. Gibbs ACJ in Sankey v Whitlam was clear as a matter of principle as to what should happen:[25]
Moreover, no such order should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so.
(Citation omitted)
[25] Sankey v Whitlam (1978) 142 CLR 1 at 43.
Whether that testing can be done by an appeal depends on the applicable legislation and rules. In Commonwealth v Construction, Forestry, Mining and Energy Union,[26] a judge of the Federal Court made an order permitting the Union to inspect a copy letter from a Federal Minister to the Prime Minister. The letter had been discovered in the proceedings by the Employment Advocate. The Commonwealth claimed PII in respect of the letter. The Commonwealth was not a party to the substantive proceeding. The Union submitted that while it may have been appropriate to hear the Commonwealth at first instance in respect of the objection, the Commonwealth had no standing to set aside the discovery or object to inspection and was therefore not a proper appellant.[27]
[26] [2000] FCR 453.
[27] Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCR 43 at [12].
The Full Court reviewed a line of cases by which it had been held that a non‑party could appeal by leave.[28] It concluded:[29]
Section 24 of the Federal Court Act confers on the Court "jurisdiction to hear and determine ... appeals from judgments of the Court constituted by a single Judge". There being a judgment, there can be no doubt that jurisdiction to hear an appeal from it is conferred by s 24. The point of controversy here arises because an entity other than a party wishes to invoke that jurisdiction. Having regard to the legislation and the authorities discussed in the preceding paragraphs, we are of the view that s 24 picks up the long established practice that permits non-parties to appeal by leave.
[28] Markham v Markham (1880) 16 Ch D 1; Re Securities Insurance Co [1894] 2 Ch 410; Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23.
[29] Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453 at [18].
Two observations follow from this. First, this appeal concerned a claim of PII, not legal professional privilege. The Commonwealth’s standing to appeal by leave as a non-party did not depend on it having a personal right that could be asserted against any other person. However, it is not apparent that this distinction was the subject of argument.
Secondly, s 24 of the Federal Court Act 1976 (Cth) (‘FCA’) was expressed in terms of a conferral of appellate jurisdiction, whereas s 43 of the DCA is expressed in terms that permit ‘a party to an action’ to appeal.
In Legal Services Commission v JHW,[30] referred to above, the accused on a charge of murder in the Supreme Court made an application for inspection of documents produced on subpoena by the Legal Services Commission. The Commission had acted for a co-accused who had pleaded guilty and been sentenced. The Commission opposed production on the basis that the documents were subject to legal professional privilege. The Full Court concluded that the Commission’s appeal against an order permitting counsel to inspect documents over which it claimed legal professional privilege was competent under s 50 of the SCA. Section 50 of the SCA is expressed in terms of a conferral of appellate jurisdiction, as is s 24 of the FCA. By contrast, s 43 of the DCA confers a right of appeal on a party to the action.
[30] (2012) 223 A Crim R 534.

CALHN in this matter is not a party to the criminal action. The competence of the appeal depends on whether, having made a claim of public interest immunity in respect of documents it has been required to produce in answer to a subpoena, it is a ‘party’ to an action in the civil, declaratory jurisdiction of the District Court, notwithstanding that in making the claim of SPII, it asserts no right personal to it.
In Sadler,[31] which concerned a claim of legal professional privilege, Bleby JA expressed the foundation for the competence of the appeal in the following terms:[32]
Legal professional privilege has been described as applying to communications as a rule of substantive law.[33] It has been described as a legal right,[34] albeit one a breach of which would not give rise to an action on the case for damages, or an apprehended breach of which could itself be restrained by an injunction.[35] Nevertheless, injunctive relief may be available to protect the associated equitable duty of confidence owed by a solicitor, requiring the return of documents obtained by trick, or restraining a third party from making use of them.[36]
Relatedly, where a statute authorises the issuing of a warrant for search and seizure, where that authorising statute does not manifest an intention to oust the privilege, the privilege will continue to apply to documents otherwise within the scope of the warrant.[37] The powers of search and seizure will not extend to documents the subject of the privilege. It follows that injunctive relief is available against police from seizing, retaining and perusing documents that are privileged, as the power conferred by the warrant in such a case does not extend to such documents.[38]
(Footnotes in original)
[31] (2021) 138 SASR 190.
[32] Sadler v Director Public Prosecutions and Anor (2021) 138 SASR 190 at [61]-[62].
[33] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[34] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 556 (McHugh J).
[35] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 564‑567 (Gummow J).
[36] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 564‑567 (Gummow J); Lord Ashburton v Pape [1913] 2 Ch 469.
[37] Baker v Campbell (1983) 153 CLR 52.
[38] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 567‑568 (Gummow J).
It was on that basis that Bleby JA observed that to raise a claim of legal professional privilege attaching to documents produced in answer to a subpoena is to raise an objection that the relevant power to compel does not extend to those documents.[39]
[39] Sadler v Director Public Prosecutions and Anor (2021) 138 SASR 190 at [63].
In Question of Law (No 1 of 2000),[40] Debelle J said of s 67E:[41]
Section 67E is an amendment to the law relating to privilege. In large part, the principles which render a document privileged from production, on the ground of either legal professional privilege or public interest immunity, are the product of the common law. Section 67E is a statutory extension of the grounds of public interest immunity privilege to include protected communications. An objection to production of documents may be taken on the ground of public interest immunity privilege when documents are being discovered or when they may be produced in answer to a subpoena. If an objection taken on this ground is upheld, it is a bar to production and inspection of the relevant document. Section 67E thus extends the existing substantive law concerning the grounds of privilege which may, according to circumstances, limit the production of documents as part of either discovery or subpoena. As an amendment to the substantive law it has a prospective operation.
[40] (2000) 77 SASR 344.
[41] Question of Law (No 1 of 2000) (2000) 77 SASR 344 at [12].
In the same case, Lander J, with whom Nyland J agreed,[42] went further in describing the extension of the substantive law by s 67E:[43]
[The legislation] protects the communications referred to in s 67E(1) by providing that they are subject to public interest immunity. It therefore gives to the maker of those communications a substantive right that the maker did not have prior to the legislation. It gives a statutory substantive right. It cannot therefore be said that the legislation only deals with procedural matters. It deals with both substantive and procedural rights.
Public interest immunity requires the court to consider two conflicting areas of the public interest. Those two matters are reproduced in this legislation in s 67F(5). Public interest immunity unlike legal professional privilege does not give rise to a substantive right against all other persons who would wish to seize, inspect or require the production of the communication: Taylor v Guttilla (1992) 59 SSR 361. It is subject to the weighing exercise to which I have referred. But that does not make the immunity any the less a substantive right.
(Citation in original)
[42] Question of Law (No 1 of 2000) (2000) 77 SASR 344 at [29].
[43] Question of Law (No 1 of 2000) (2000) 77 SASR 344 at [92]-[93].
The language used here might, with respect, be thought to be a little unclear. Lander J’s conclusion that the legislation gives ‘to the maker of those communications a substantive right’ was reached in contemplation of whether the sections had a prospective operation only. It requires some interrogation.
For the reasons given above, and as Lander J acknowledged, PII has not been understood to confer a legal right on a person, against other persons, in the way that legal professional privilege has. Rather, a finding that a document is protected by PII is a product of weighing competing public interest considerations to conclude whether the public interest in non-disclosure outweighs the public interest in disclosure. The determination of that weighing process accords the protection of substantive law to the document, in service of the public interest. The duty of the Court to maintain that protection sits behind the acceptance that any person can make a claim of PII, that is, assert where the balance of the public interest lies.
By contrast, s 67E deems certain communications to be ‘protected from disclosure in legal proceedings by public interest immunity’. As Lander J observed in Question of Law (No 1 of 2000),[44] s 67F then deals with the procedural consequences of the deeming in s 67E. Section 67F does several things. It renders protected communications inadmissible in committal proceedings and not liable to discovery or any other form of pretrial disclosure.[45] With respect to other legal proceedings, it imposes a regime for the assessment of competing public interests, so the Court can decide whether to permit to a party to the proceedings to adduce evidence of the protected communication. However, that balancing process is applied to a communication already deemed to be a protected communication. PII, by contrast, requires engagement in the balancing process to determine whether a document is protected by PII at all.
[44] (2000) 77 SASR 344 at [91].
[45] Evidence Act, ss 67F(1)(a) and (c).
There is a risk of confusion arising from the fact that s 67E confers SPII on a class of documents absolutely, while s 67F then sets out procedural facilities for the admission of evidence ‘protected’ by SPII. In doing so, s 67F uses a test that reflects the common law test for determining whether PII exists in the first place and thereby appears to inform the content of the substantive protection conferred by s 67E.
It appears, with respect (and expressing it differently from, rather than disagreeing with the outcome of, Lander J’s analysis), that as with PII, a conferral of SPII operates as a substantive legal proscription with respect to a defined class of communication, in service of a public interest deemed to exist by statute. The prohibition against waiver confirms that the status of being a ‘protected communication’ operates in the public interest in encouraging victims of sexual offences to make communications in a therapeutic context.
The substantive legal proscription is against production by compulsory process in legal proceedings. That status in turn imposes substantive obligations on individual persons not to disclose the communications other than in circumstances prescribed by s 67F. While 67F is procedural in nature, it has consequences for the operation and application of the substantive legal proscription imposed by s 67E.
We would therefore express the nature of the regime in ss 67E and 67F as dealing with substantive obligations, and procedural rights and obligations, rather than ‘substantive and procedural rights’. The substantive obligations of non‑disclosure are created in service of a deemed public interest. The language of rights is ill-suited to this concept.
That does not assist the respondent’s objection to the competence of the appeal. SPII expands a doctrine of substantive law that has been developed in service of a public interest. The substantive obligations arising therefrom do not confer any personal right on the victim or alleged victim that they can enforce against others. On the other hand, such a person would have standing to enforce the protection attached to the communications, as would the person with custody of the record of the communication.
There can therefore be no doubt that CALHN had standing to assert and prosecute the claim of SPII in the District Court. It has control over the documents and perceives a substantive obligation not to produce them in answer to a subpoena. It has invoked the jurisdiction of the District Court to declare whether the documents subpoenaed are protected communications within the meaning of s 67E.
In Sadler v Director of Public Prosecutions, Bleby JA said:[46]
Non-parties to criminal proceedings will raise claims of legal professional privilege attaching to documents that they have produced in answer to a subpoena. To do so is to raise an objection that the relevant power to compel does not extend to those documents.
[46] (2021) 138 SASR 190 at [63].
Later, in respect of the issue arising in that case, Bleby JA said:[47]
The question then arises as to the proper characterisation of a case where a non-party produces documents in answer to a subpoena issued in criminal proceedings, but seeks orders with respect to claims of privilege made by the accused that have not been previously determined. Not being a party to the criminal proceedings, the non-party can only have engaged the civil, declaratory jurisdiction of the Court under s 8(1) of the DCA and s 31 of the SCA, in parallel with the Court’s criminal jurisdiction. The subject matter of that engagement, however framed as a matter of form, is necessarily the question of the existence of the power to seize the file in the first place. The determination of such an application for a declaration as to the existence of a power is amenable to appeal under s 43.
[47] (2021) 138 SASR 190 at [70].
For the reasons given above in relation to the character of SPII, we do not consider that the analysis is materially different where a party asserts that the relevant power to compel does not extend to certain documents by reason of the operation of SPII. While s 67E conferred no personal right on CALHN, the objection that the relevant power to compel did not extend to certain documents held by CALHN engaged the civil, declaratory jurisdiction of the District Court under s 8(1) of the DCA. CALHN had standing to engage that jurisdiction and was thereby a party to that action. It follows that CALHN has the right to appeal under s 43 of the DCA. The appeal is competent.
The application to adduce further evidence on the appeal
CALHN sought leave to adduce further evidence on the appeal, in the form of an affidavit of Dr Paul Furst made on 16 August 2023. Dr Furst is CALHN’s Executive Director for Mental Health and Prison Services. The affidavit offers an explanation of how the various documents answering the description in the subpoena fit into CALHN’s standard mental health treatment practices.
This evidence not having been before the primary judge, the respondent opposed its admission on the appeal. The principles surrounding the admission of further evidence on appeal are well known:[48]
The Court has a broad discretion under r 218.17(1)(c) to receive “further evidence” on the hearing of an appeal. The discretion is not circumscribed by the common law principles governing the reception of “fresh evidence” on appeal,[49] although similar considerations will often be relevant. In particular, it will generally be relevant to consider:[50]
·Whether the evidence was available at the hearing below, or could with reasonable diligence have been obtained for use at that hearing.
·Whether the evidence is such that it would have had an important influence on the result. While it need not necessarily be decisive, it must be more than merely useful.
·The likely impact of the evidence in terms of whether it is controversial or contested, and if so, whether its receipt is likely to require cross-examination, further responding evidence or that the matter be remitted for rehearing.
·The public interest in the finality of litigation.
(Footnotes in original)
[48] Draoui v Le & Ors [2021] SASCA 33 at [102] (Doyle JA).
[49] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [52] (Gaudron J), [104]-[108] (McHugh, Gummow and Callinan JJ).
[50] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [55] (Gaudron J), [111]-[116] (McHugh, Gummow and Callinan JJ) and [186]-[189] (Kirby J).
CALHN did not adduce any evidence on the topic of whether the evidence could with reasonable diligence have been obtained for use at the hearing. It simply submitted that in the time between the objection to the claim of immunity and the ruling, it was unable to prepare and adduce that evidence in the District Court. It submitted that it was only on the morning of the primary judge’s orders that the respondent identified the specific documents. Prior to that occurring, there were some 700 pages of records returned on the subpoena and CALHN was unable to adduce evidence about them all.
The respondent disputed that this was a correct characterisation of what transpired. It is necessary to revisit the chronology. As already observed, the subpoena was served on 6 April 2023. Having obtained an extension, CALHN answered the subpoena on 14 April 2023. It appears that the documents produced contained numerous redactions. CAHLN then produced a refined set of documents (some 480 pages) with fewer, but still many, redactions, on 28 April 2023. The respondent received copies on 1 May 2023.
The trial commenced with argument on the subpoena on 2 May 2023. Argument continued on 3 May 2023, the primary judge having inspected the documents. During the course of argument, the primary judge observed:
It’s very difficult for me, though, … to actually ascertain which documents are properly protected communications given that it is difficult to ascertain when there is any therapeutic context here in terms of there being any work done … by a counsellor or therapist. … It is very difficult, on the fact of these documents having now read them all, to ascertain how they come within the scope of this but they may well do.
The judge made this observation without the benefit of any affidavit supporting the claim of SPII and explaining how, for example, the documents evidence communications made in a therapeutic context. As the respondent observed, this was now almost a month after the subpoena was issued.
Argument proceeded in an unusual fashion. CALHN not having supplied an affidavit asserting and justifying the claim, the primary judge expressed a preliminary view that the redactions were too broad. Her Honour in addressing counsel for CALHN said:
I will hear from you but you need to understand that what I’m proposing here is that this is far too broad, that you need to go away, again, and look at these documents and looking at them not as documents that ultimately might form some basis for counselling or therapy that ultimately occurs but whether or not they are properly notes and communications made by a counsellor.
What sat behind this was a particular view (which CALHN now challenges) as to what is capable of falling within s 67E. Counsel indicated that if her Honour’s ultimate ruling was that the redactions were too broad, CALHN would reconsider the redactions. Counsel then made submissions on the breadth of the section but then requested:
some indication of your Honour’s view as to, effectively, who falls within and without the relevant definition of counsellor or therapist…
Her Honour gave that indication, which accorded with her ultimate ruling. Counsel then undertook to return with a revised set of redactions. Conscious of the fact the trial had commenced, he requested 48 hours. The discussion proceeded having regard to the need to keep the trial. In the event, the judge gave counsel for CALHN a little over 24 hours and the matter was adjourned to 2:15pm on 4 May, being the next day.
On 4 May 2023, Counsel for CALHN returned with revised redactions. He explained to the Court:
Broadly, the remaining redactions relate to assessments of [the complainant’s] mental state, which are for the purpose of her psychiatric or psychological therapy later provided, as well as notes of contacts between employees of CALHN, namely social workers, psychiatric nurses, psychologists and psychiatrists for the purposes of counselling [the complainant]. In the time available, we’ve done our best to ensure consistency etc. across the materials.
The trial proceeded with respect to other preliminary issues for the rest of that day. The following day, 5 May 2023, it resumed with the judge making the rulings on the specific documents as set out above. Counsel requested written reasons. The judge delivered oral reasons the same day. Counsel then indicated that CALHN required 21 days to consider the reasons, for the purposes of commencing any appeal. The matter was adjourned and, as already observed, the trial date was lost.
CALHN’s submission that it was unable to prepare the Furst affidavit in the time available to it is insufficient to discharge its obligation to show that it could not, with reasonable diligence, have obtained the affidavit for use at the hearing. The ultimate narrowing of the documents sought by the respondent just prior to the hearing is not the governing consideration. CALHN answered the subpoena by producing the documents sought, with redactions. To the extent that those redactions were based on a claim of SPII, CALHN presumably had some basis for making that claim. CALHN has not explained why it could not articulate that basis in writing in the form of a supporting affidavit in the weeks available to it.
CALHN’s focus on the period immediately preceding the hearing and determination, when the documents sought were narrowed, is problematic. That narrowing followed an indication by the judge, encouraged by CALHN’s counsel, as to what she considered fell within the scope of s 67E. CALHN then adjusted its claim of SPII before any final ruling. The difficulty with this course, with respect, is illustrated by the nature of the claim. CALHN had an obligation to make the claim with respect to the documentation that it considered, on advice, fell within the scope of the protection. It had no ability to waive the protection. Its duty, being in possession of the documentation, was to come to a considered view, claim SPII in accordance with that view, and prosecute the claim.
It is impossible for this Court to know what sat behind CALHN’s initial redactions and then its reduction of their number. A claim of SPII by a body such as CALHN is a matter of duty, not the negotiation of a private interest. For this reason, the process by which CALHN apparently adjusted its claim based on the judge’s indication of her views of the application of the section is, whilst pragmatic, difficult to understand.

That process of contraction of the claim does not offer any justification for not having adduced the Furst affidavit at the primary hearing. CALHN had almost a month between receipt of the subpoena and argument on the claim of SPII. In circumstances where the breadth of the claim was reduced in that time, CALHN clearly had an opportunity to adduce evidence supporting any claim of SPII it considered was required.
CALHN has not shown that the Furst affidavit could not with reasonable diligence have been obtained for use at the hearing.
Whether the evidence was available at the original hearing, or could with reasonable diligence have been obtained for use at that hearing, has generally been expressed as a consideration relevant to the exercise of the discretion to admit further evidence. In many if not most matters, that question is likely to be highly influential, if not determinative of whether the evidence should be received. In that way, it operates more as a criterion than a consideration. However, we do not think that it has that weight in the present case.
First, for the reasons discussed above, the question of whether SPII applies to the documents employs an objective statutory test that is applied in service of a deemed public interest. It does not arise as a question of rights as between the parties.
Second, the evidence itself is not controversial. The greater controversy lies in the construction of, and scope of protection given by, s 67E, not what the documents represent.
Third, the evidence is particularly useful. It supplies information about the documents that the primary judge lacked, the absence of which made her Honour’s task difficult. The information contained in the affidavit is more than just useful. It supplies an understanding of the documentation that is critical to determining whether a statutory protection, legislated in the public interest, is engaged with respect to these documents. It is likely to have an influence on the result.
The public interest in the finality of litigation remains a concern in this case. Had both the respondent and CAHLN managed this process differently, the issues could have been confined at a much earlier stage. The trial date may not have been lost. On the other hand, the primary issue was the scope of the protection given by s 67E. Admission of the Furst affidavit on the appeal does not affect the need to determine that question. In the circumstances, it can only assist the determination of the claim.
In these circumstances, having regard to the nature of the inquiry into whether a document is a ‘protected communication’ and the role of CALHN in that inquiry, the interests of justice favour the admission of the affidavit on the appeal. That is notwithstanding that CALHN has not shown that the Furst affidavit could not with reasonable diligence have been obtained for use at the hearing. This is a relatively exceptional conclusion dependent on the nature of the present task before the Court.
The scope of ‘protected communications’
As identified above, pursuant to s 67E, a communication is a protected communication if it is a communication relating to a victim or alleged victim of a sexual offence, if made in a therapeutic context. Section 67D defines ‘therapeutic context’. It is helpful to set out that definition here again:
therapeutic context—a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if—
(a) the communication is made—
(i)to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b) the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
As to the first limb, in sub-paragraph (a)(i), s 67D defines ‘counsellor or therapist’ as follows:
counsellor or therapist means a person whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma (and includes a person who works voluntarily in that field);
The section also provides an inclusive definition of ‘psychiatric or psychological therapy’:
psychiatric or psychological therapy includes counselling;
It was not in dispute that paragraph (b) of the definition of ‘therapeutic context’ was engaged throughout. CALHN’s claim then invoked the limb of the definition in subparagraph (a)(ii).
In R v R, GJ,[51] the Full Court made several observations about the breadth and restrictions on the operative terms of sub-paragraph (a)(ii). First, Kourakis J observed that the section expanded the definition of the term, ‘psychiatric or psychological therapy’ by including counselling, a term that was not defined or limited by the Act.[52] As to how this extended the meaning of the term operates in practice:[53]
It may be accepted that “psychiatric therapy” refers to treatment administered by someone who is skilled in treating mental illness. It may also be accepted that a Bachelor of Social Work does not establish possession of that skill. On the other hand, the term “psychological therapy” is wider. It includes the therapeutic management of states of mind and behaviours which are not illnesses. It is commonly accepted that trained professionals other than psychologists can manage such conditions. Social workers and other counsellors provide therapy for a wide range of mental states and behavioural dysfunctions including alcohol and drug use, anxiety, depression and relationship difficulties to name but a few.
[51] (2009) 105 SASR 506.
[52] R v R, GJ (2009) 105 SASR 506 at [20] (Kourakis J, Duggan and Bleby JJ agreeing).
[53] R v R, GJ (2009) 105 SASR 506 at [20] (Kourakis J, Duggan and Bleby JJ agreeing).
There is an interrelationship between the definitions. The term ‘psychological therapy’ has a broad reach, but the concept of a ‘counsellor or therapist’ is limited, in a way that has at least tangential implications for the present matter. In R v R, GJ, Kourakis J continued:[54]
The restriction found in the definition of “counsellor or therapist”, which limits those terms to persons “whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma”, provides an important limitation on the scope of the term “therapeutic context”. It would not, for example, include communications made to a relative or friend, unless that friend or relative also happened to engage in work which included the provision of therapy to victims of trauma. Even though element (ii) of the definition of “therapeutic context” does not expressly limit psychiatric or psychological therapy to therapy provided by a counsellor or therapist as defined, that limitation should, in my view, be implied. It would be anomalous if the range of persons to whom protected communications could be made was greater with respect to the provision of treatment than the range of persons who could make protected inquiries to ascertain the nature and severity of a victim’s trauma for the purpose of determining whether or not treatment was appropriate.
[54] R v R, GJ (2009) 105 SASR 506 at [22] (Kourakis J; Duggan and Bleby JJ agreeing).
In that case, the subpoenaed documents related to the counselling provided to the complainant by a school counsellor. The Court concluded, on the basis of the above analysis, that the school counsellor came within the definition of ‘counsellor or therapist’.
In the present case, CALHN joined issue with the primary judge’s conclusion that she was not satisfied that several of the admission records met the description in sub-paragraph (a)(ii), on the basis that they were ‘essentially progress notes recording history and observations made by various health professionals’.
The starting point for CALHN’s submissions was the proposition that where a person who is mentally unwell attends a hospital for any treatment purpose, whether counselling, pharmacological treatment or observations to allow de-escalation, all those things are done for the purpose of psychiatric or psychological therapy.
It was an element of this submission that a communication made for those purposes need not be with a counsellor or therapist as defined in s 67D. CALHN supported this submission by observing that s 67E(3) provides separately that SPII attaching to the communication cannot be waived by (a) a counsellor or therapist or (b) a party to the protected communication. As a matter of necessary contextual implication, it followed, in CALHN’s submission, that a counsellor or therapist need not be a party to the communication.
That submission is consistent with the terms of the definition of ‘therapeutic context’, which looks to a communication ‘relating to a victim or alleged victim of a sexual offence’ and is made ‘for the purposes … of psychiatric or psychological therapy’. As a matter of immediate text and context, there is little to recommend a reading that the communication must be between the victim or alleged victim and the counsellor or therapist. Communications to a mental health nurse made at the point of triage, for example, may well properly be characterised as being for the purposes of psychiatric or psychological therapy.
This view is supported by the obvious purpose of the section. That is to enable victims and alleged victims of sexual offences to access therapy and make necessary disclosures to that end without any inappropriate risk of their personal circumstances being disclosed in legal proceedings.[55] That patent purpose supports a broad reading that incorporates communications made to a person who is not necessarily a counsellor or therapist, if the communication is found, on the evidence, to be made (relevantly) for the purposes of psychiatric or psychological therapy.
[55] [Suppressed] [2005] SASC 214 at [36].
The second limb of the definition of ‘therapeutic context’ in subparagraph (a)(ii) distinguishes between communications made for such purposes and communications made in the course of psychiatric or psychological therapy. This is a further textual indicator that a communication made for the purposes of psychiatric or psychological therapy need not be made directly to the counsellor or therapist.
Thus, for example, we would hold that communications made to a mental health nurse in an emergency department setting for the purpose of a psychiatric assessment can be characterised, subject to what we say below, as being made for the purposes of psychiatric or psychological therapy. In this regard we respectfully do not agree with the apparent reasoning of the primary judge.
More contentiously on the appeal, as it turned out, CALHN submitted that the Act did not require that there be a connection between the alleged sexual offending and the therapy for the protection to attach. It submitted that there was no ‘textual hook’ for such a connection to be drawn. It was sufficient, in CALHN’s submission, that the person be a victim or an alleged victim of a sexual offence, and that a communication be made in relation to that person in a therapeutic context. To this end, it observed that it has been held that a therapist need not be aware of the sexual offending for the protection to be invoked.[56] Disclosure is often made years after the offending; communications may be made in a therapeutic context in the meantime as the victim or alleged victim works towards making that disclosure.
[56] [Suppressed] [2005] SASC 214 at [36].
The respondent accepted that the term ‘therapeutic context’ has a broad reach. Indeed, as counsel observed at the hearing, the difference between the parties’ interpretation was not as wide as might first have been thought. However, the respondent submitted that the essential limitation of the definition of ‘therapeutic context’ was that there must be a link between the therapeutic context and the trauma suffered as a consequence of the alleged sexual offending. In this regard, he relied on the manifestly apparent purpose of the scheme, described above.
The respondent accepted that the communications did not need to be related to the proceedings on foot. He submitted, however, that the therapy must relate to the trauma suffered as a consequence of the sexual offending or alleged sexual offending.
The respondent gave the example of a person who became a victim of a sexual offence at the age of seven. Assume that they then developed a mental illness, for example schizophrenia, in late adolescence. Assume also that it is impossible to say what the causes of that condition are. On a pure textual reading of the definition as advocated for by CALHN, all communications made in a therapeutic context would be protected communications, regardless of whether that therapeutic context related to the historical sexual offending. Rather, in the respondent’s submission, there must be a connection between the offending and the therapeutic context in order to give effect to the purpose for which the immunity is conferred.
Whether that link exists in a given case would be a matter of evidence. The respondent accepted that this might give rise to some difficulty on the part of the Court making the assessment. However, it was a necessary integer of the respondent’s argument that, difficult or not, the question was ultimately one of evidence: what was apparent on the face of the documents and, potentially, any matter raised in evidence adduced in support of the claim of SPII.
We accept CALHN’s submission that the communications need not necessarily be made to a counsellor or therapist in order to arise in a therapeutic context. The language of the section is broader than that. It extends, in our view, to communications made for assessment and progress noting purposes, all of which may provide relevant information and context for therapy.
We do not accept CALHN’s submission that there is no textual hook by which it may be inferred that in order for the communication to be made in a therapeutic context within the meaning of the section, there must be a connection between the therapy and the offending. The first limb of the definition in sub‑paragraph (a)(i) refers to ‘the nature and severity of the trauma suffered by the victim or alleged victim’ (emphasis added). The use of the definite article directly connects ‘the trauma’ to the sexual offence of which the person is the victim or alleged victim. The subsequent reference to ‘consequent psychiatric, psychological or emotional harm’ connects the harm so described to ‘the trauma’.
This first limb is concerned with the initial assessment of the trauma connected with the sexual offending. The second limb in sub-paragraph (a)(ii) (which CALHN invokes in this case) is expressed more broadly, requiring that the communication be ‘for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim’. As CALHN expressed it, it is concerned with a cycle of assessment and response. It submitted that there would be circumstances where it would be impractical, if not impossible, for a judge to assess whether the particular presentation had a connection with the sexual offending or alleged sexual offending.
CALHN gave the example of the unredacted information in the present case, to the effect that the complainant was clearly the victim of sexual offending as a young child, and throughout her adolescence and adulthood suffered from PTSD and borderline personality disorder. It submitted that it would be almost impossible to separate these conditions from the trauma that she suffered as a result of the sexual offending.
That difficulty notwithstanding, in our view the second limb requires a connection between the offending or alleged offending and the communication made for the purposes of psychiatric or psychological therapy, even if that connection is not known at the time of the communication. The words ‘provided to the victim or alleged victim’ assert a context for the therapy. The second limb describes the next and ongoing step following assessment of ‘the trauma’ as contemplated by the first limb.
These aspects then fall to be considered together with the accepted purpose of the section, as described above. To protect any communication made for the purposes of psychiatric or psychological therapy, even if that is wholly unconnected with the sexual offending, would take the protection outside the manifest purpose of the section. That observation must then be considered together with the fact that the scheme attaches SPII to a class of communication, such that it protects that class of communication from disclosure in legal proceedings. That imposes an interference with an accused person’s ability to obtain forensically relevant information.
Having regard to the immediate context of the second limb, and the manifest purpose of the protection it grants, we would not interpret it as interfering with the forensic ability of an accused to obtain information relevant to a defence. In our view, the limb requires the existence of a connection between the purposes of psychiatric or psychological therapy and the sexual offending or alleged sexual offending.
This is consistent with the exclusion from the protection, in s 67E(2), of ‘a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence …’. In R v C, RE,[57] Parker J held that this exception must be read in context as referring to a physical examination that is in some way related to the alleged sexual offence.[58]
[57] [2015] SASCFC 32.
[58] R v C, RE [2015] SASCFC 32 at [33].
CALHN observed that interrogating those links would be very difficult without the expert evidence of a treating practitioner. We acknowledge the difficulty. However, the necessary evidence need not always be expert evidence. A treating practitioner might be able to give descriptive evidence of the consultations or evidence explaining the processes by which communications are made and recorded amongst a broader category of professionals. The practitioner may be able to explain how those communications relate to psychiatric or psychological counselling and, potentially, to the relationship with sexual offending in the case. The Furst affidavit goes some way to doing this, albeit that Dr Furst is not the treating practitioner, and his evidence is thereby limited.
On the other hand, in some cases, especially where a disclosure of sexual offending was not made for many years but therapy was nonetheless administered in the meantime, it may be necessary for expert evidence to explain the existence of a link. Equally, it may be necessary for an expert to give evidence as to whether, for example, a presumptive link should be inferred. Indeed, it may be the case that it is often forensically impossible to disentangle the causes of a complex mental health presentation. It may be appropriate to infer a link. However, if that is the case, it needs to be the subject of evidence. The Court cannot presume that to be the case.
Absent assistance of that nature, it will be necessary for the judge to review the material comprehensively, considering it in its full context and taking whatever assistance can be gleaned from that context. That context may include the document’s recording of the history, or some part thereof, of the person being a victim of sexual offending. If such a history is recorded in the document in some respect, that would generally be sufficient to demonstrate a connection to the relevant therapeutic context. That is, a link may be inferred on the basis of what is disclosed.
However, absent affidavit evidence of the nature referred to above, it may be that the document itself, even when read in its broader context, provides insufficient information from which to conclude that the necessary link exists.

The complaint of impracticality or impossibility must be considered in context. The present contest is premised on the basis that the documents described in the subpoena serve a legitimate forensic purpose in the proceeding. That premise was never tested. Its strength with respect to all documents returned on the subpoena is doubtful. The application of SPII, in exception to an accused’s right to obtain information relevant to the defence, need only be considered where a legitimate forensic purpose has been identified. Once that is done, and the terms of the subpoena appropriately confined, that will dictate the scope of what must be addressed in support of any claim of SPII.
The documents that remain in contest in the present appeal are of a relatively narrow compass, compared with what was sought on the subpoena.
The potential practical difficulties with identifying a link, which will arise on occasion, do not provide a sound basis for denying the requirement of that link. That requirement is supported by the immediate context and the manifest purpose of the section, as well as the broader context that this section operates to impose SPII in respect of a class of documents to the forensic disadvantage of an accused person. By the same token, a subpoena issued on the application of an accused person must, at the outset, demonstrate a legitimate forensic purpose.
Application of s 67E to the documents remaining in contention
By way of introduction, it is helpful to quote Dr Furst’s explanation of CALHN’s Mental Health Clinical Program:
7.    The Mental Health Clinical Program is one of nine clinical programs within CALHN. It provides comprehensive inpatient and community based mental health care (mental health services) to people aged from 16 years living within the CALHN mental health catchment area.
8.    CALHNs mental health services are located in the CALHNs two general hospitals, the RAH and QEH, Glenside campus and at a range of community sites. The service is multidisciplinary and employs a range of medical, nursing, allied health, administration and lived experience workers and partners with multiple government and non-government services in the co-ordination of treatment and support services.
Community Mental Health Services (CMHS)
9.    The CMHS is a public, community-based service that provides mental health tertiary level care for consumers aged between 16 and 65 residing with the CALHN mental health catchment area. Tertiary level mental health care means specialist mental health services for consumers with severe mental illness who cannot be managed by primary and secondary services. These include mental health assessment, treatment and risk management and are provided by multidisciplinary staff including nursing, allied health and medical staff. It is interdependent with the broader network of mental health services aligned to primary and secondary levels of care.
…
12. The CMHS comprise a number of teams which are headed by Psychiatric Consultants who work within the CMHS. The CMHS teams comprise multidisciplinary staff as outlined at [8] above (MH staff). The Psychiatric Consultant would be responsible for the overall care, support and treatment provided to the patients by each of the MH staff. Each MH staff would in turn be the case manager for a number of patients. The ECMH will have a duty roster so that the Mental Health Triage Service can refer an acute patient to a worker. The role of the duty worker is to provide acute counselling or management to a patient in circumstances where their usual MH staff or case manager is not available.
CALHN addressed the documents the subject of appeal by category. It identified three apparent categories, being progress notes, Mental Health Examinations and Risk Assessments and EMH (Emergency Mental Health) Triage Service Notes. Given our conclusion, above, as to the requirement of a link between the sexual offending and the psychiatric or psychological therapy purposes, we will address the documents in the order that the primary judge addressed them in her order.
The category in which a document falls provides relevant context, as does the surrounding context of the redacted portions of documents the subject of the appeal. What we mean by this is that while we will consider the redacted portions of the identified document in each case, the balance of the document and any immediately related documents may provide important context from which to identify whether the necessary link exists.
Volume 1, Royal Adelaide Hospital (RAH) Documents, pp56-57; 62-63
These documents are in the category of Mental Health Examination and Risk Assessment. Dr Furst explained:
Mental State Examination (MSE)
21. An MSE in lay terms is the equivalent of a physical examination for a patient presenting with a physical illness. It is performed by a health professional on a patient. It is expected that in the course of a doctor or nurse’s education and/or medical training that they would have the requisite ability to perform an MSE. All ED doctors and nurses are expected to have the training and experience to perform an MSE as part of the professional expectation that they are able to manage with patients present with mental health disorders or illnesses.
…
Risk Assessment:
22. A risk assessment seeks to assess whether the patient is at risk of self-harm, suicide, violence or absconding from treatment. Following the MSE and Risk Assessment a management plan would be formed as to the progression of the assessment, treatment and therapeutic services provided to the patient. A risk assessment is ordinarily performed by any mental health clinician, including a nurse or doctor.
Dr Furst did not address the first of these documents. It is a Mental Health Nursing Assessment. For the reasons discussed above, the communications recorded are capable of meeting the criteria of the second limb in sub-paragraph (a)(ii) of the definition of ‘therapeutic context’. However, it is not apparent on the face of the document that there is any causal relationship between these communications and the sexual offending the complainant suffered.
Dr Furst did address the second of these documents. He explained that it shows an Assessment of Mental Health Risk recorded by a mental health nurse in relation to the complainant’s presentation at the RAH Emergency Department on the same day as recorded in the first document. That is, the documents together record the assessment and presentation of the complainant on the one occasion.
We would not conclude by looking at these documents in isolation or together that there could be said to be the necessary relationship with the sexual offending that the Act requires. However, these assessment records are followed by the complainant’s inpatient progress notes of the same day. The judge held that some of these progress notes were protected communications. Given the view we have taken of the breadth of the protection, it would appear to be inconsistent for those progress notes to attract SPII and the Mental Health Nursing Assessment and Mental Health Risk Assessment not to do so. Those assessments are made ‘for the purposes of’ psychiatric or psychological therapy, construing that phrase appropriately broadly.
Reviewing the content of the progress notes that provide context to the assessment documents of the same day, and particularly the history recorded in those notes, we are satisfied on balance, but only just, that there is a sufficient link with the sexual offending. It would have been preferable for this claim to have been supported by expert evidence or evidence of a treating practitioner. Nonetheless, we would allow the appeal in respect of these documents.
Volume 2, Queen Elizabeth Hospital Electronic (QEH) Records, pp42, 48
These documents fall within the category of progress notes. They are both records from the same date. The first was taken by the QEH Emergency Department Team and the second by a QEH Medical Officer.
On the basis of the construction of the section undertaken above, these documents are capable of being protected communications, should the necessary link with sexual offending be established. However, on perusing these documents and the surrounding documents for context, there is nothing on the face of the record that evidences the necessary link. In our view, CALHN has not established that these are protected communications. We would dismiss the appeal in respect of these documents.
Volume 3, QEH Patient Records, pp 37-42, 53-55
These documents are a combination of progress notes and Mental Health Examinations and Risk Assessments. They comprise an Emergency Department Psychiatric Assessment by a doctor and progress notes described as ‘Medical Support and Review’. They all relate to the same date. For the reasons expressed above, these documents are capable of being protected communications, should the necessary link with sexual offending be established. They are made ‘for the purposes of … psychiatric or psychological therapy’, reading that phrase in its necessarily broad sense.
In our view, the necessary link is clearly established on the face of the progress notes. Given that these records all concern the same occasion, and it is the progress notes relating to that occasion that provide the express link with sexual offending, we hold that both of these documents are protected communications and allow the appeal with respect to them.
We note that the primary judge ruled that a further copy of the document at pp 47-52, appearing elsewhere in the bundle, was a protected communication. Her Honour’s failure to rule the same way in respect of this copy appears to have been a mistake, easily done given the volume of documents that she was required to address.
Volume 4, Glenside Medical Records Schedule 1, pp 22, 23, 25, 104, 106
These comprise EMH Triage Notes and Mental Health Examinations and Risk Assessments. The documents at pp 22, 23 and 25 all relate to one date. The documents at pp 104 and 106 relate to a single, different date.
For the reasons given above, these documents would be capable of being protected communications, if the necessary link was established. However, there is nothing on the face of the documents, nor in the other documents recording communications close in time to these, that could be said to provide evidence of the necessary link. Absent any evidence from a treating practitioner or expert, CALHN has not established that these documents are protected communications. We would dismiss the appeal in respect of these documents.
Volume 6, Glenside Medical Records Schedule 3, pp 28, 30, 77-78, 96
These documents comprise Mental Health Examinations and Risk Assessments and EMH Triage Notes. They concern different dates. For the reasons given above, each is capable of being a protected communication, should the requisite causative link be established. We address each in turn.
As to p 28, the link is established on the face of the document. We hold that this is a protected communication.
As to p 30, the link is established on the face of the document. We hold that this is a protected communication.
Pages 77 and 78 are part of the same document. The documents do not disclose any link with the sexual offending. We cannot see that there is any other immediately related document that establishes a context from which such a connection can be inferred. In the absence of further evidence, we hold that these pages are not protected communications.
Page 96 does not disclose any link with the sexual offending. Moreover, it records a conversation between EMH Triage Services and a third party, to the effect that the complainant is looking for help. This is probably capable of coming within the concept of being for the purposes of psychiatric or psychological therapy to the complainant. However, we are not satisfied that it discloses any link with the sexual offending. We hold that this is not a protected communication.
Within this category of documents, we therefore allow the appeal in respect of pp 28 and 30.
Other matters
Ground 1 of the appeal complained that the primary judge failed to give adequate reasons for her decision with respect to each of the documents upon which findings were made. Given the way in which the issues were distilled at the hearing of the appeal, and the need to consider the remaining documents in light of the section as we have construed it in any event, it is unnecessary to determine this ground.
It is possible that these determinations on appeal might appear arbitrary to a mental health professional. However, it has been necessary to approach the documents in contest by reference to the evidence adduced at trial and on appeal, and by looking at the documents themselves. The Court cannot make an assumption about links. Absent evidence as to the existence of such a link, the Court is confined to considering the contextual disclosures recorded in the documents.
As CALHN observed, this creates a practical difficulty. However, if that difficulty cannot be overcome by evidence of a general nature as to the presumptive relationship between sexual abuse and later presentations requiring therapy, or evidence specific to the particular case, that is a matter for the legislature. SPII represents an extraordinary legislative intervention, made for understandable policy reasons. However, it constitutes an interference with an accused person’s ability to obtain information in service of a legitimate forensic defensive purpose. For this reason, it should be viewed strictly.
For the same reason, and as discussed above, the nature of this legislative protection highlights the need for vigilance by all participants in the process as to the legitimate forensic purpose of the terms of any subpoena seeking records of this kind.
Conclusion
We allow the appeal to the extent of holding that the following documents are protected communications:
·Volume 1, Royal Adelaide Hospital Documents, pp 56-57; 62-63;
·Volume 3, Queen Elizabeth Hospital Patient Records, pp 37-42, 53-55; and
·Volume 6, Glenside Medical Records Schedule 3, pp 28, 30.
The application for judicial review is dismissed.