Francis (a pseudonym) v Commonwealth (No 3)

[2023] ACTSC 382

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Francis (a pseudonym) v Commonwealth (No 3)

Citation: 

[2023] ACTSC 382

Hearing Date: 

12 December 2023

Decision Date: 

12 December 2023

Before:

Mossop J

Decision: 

1.    Leave is granted for the disclosure of the protected confidences contained within the records produced by the Mt Sheridan Medical Practice in response to the subpoena dated 22 November 2023 (S2875002).

2.    The defendant has first access to the documents produced until 15 December 2023 and has leave to uplift the documents for 24 hours for the purposes of copying on the condition that it provides an electronic copy of all documents produced to the plaintiff and thereafter both parties have access.

Catchwords: 

CIVIL PRACTICE AND PROCEDURE – SUBPOENAS – Application for access to documents that contain protected confidences – documents produced in response to subpoena – no material of significance where public interest in preserving the confidentiality of protected confidences would tend against disclosure – documents will be of significance in proper assessment of plaintiff’s claim – access granted

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79, 79A, 79E, 79F, 79G, 79H

Cases Cited: 

Francis (a pseudonym) v Commonwealth [2023] ACTSC 222

Francis (a pseudonym) v Commonwealth (No 2) [2023] ACTSC 276

Parties: 

Alan Francis (a pseudonym) ( Plaintiff)

Commonwealth of Australia ( Defendant)

Representation: 

Counsel

T Hakkinen ( Plaintiff)

J Liang ( Defendant)

Solicitors

Porters Lawyers ( Plaintiff)

Norton Rose Fulbright ( Defendant)

File Number:

SC 24 of 2023

MOSSOP J:  

1․These proceedings relate to a claim of historical sexual abuse that is alleged to have occurred between about mid-1969 to mid-1971, when the plaintiff was a junior recruit and member of the Royal Australian Navy.

2․On 11 August 2023, Curtin AJ granted the plaintiff leave to issue subpoenas to the Ramsay Clinic Cairns and Open Arms: see Francis (a pseudonym) v Commonwealth [2023] ACTSC 222. Curtin AJ also ordered that access to any documents produced in response to those subpoenas was prohibited without an order of a judge of the Supreme Court.

3․On 29 September 2023, I granted access to the documents the subject of those subpoenas, as well as documents produced by the plaintiff pursuant to order 8 of the orders of Curtin AJ: see Francis (a pseudonym) v Commonwealth (No 2) [2023] ACTSC 276.

4․I also granted leave to both parties to issue a subpoena to the Mt Sheridan Medical Practice to obtain all medical records it holds in relation to the plaintiff. For those purposes, I was satisfied that the requirements of s 79E of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) had been complied with and that there was a legitimate forensic purpose for the purposes of s 79F. The documents have since been produced by the Mt Sheridan Medical Practice.

5․It is therefore necessary to examine the documents pursuant to s 79G. Section 79G(7) requires that “[a] record of the preliminary examination must be made, but must not be made available for public access”. The content of this record is not specified. Nor is the rationale behind the reference to “public” access. It appears to contemplate either that nobody outside the court system may have access to the record or that the parties may have access to the record but the general public may not. It is not necessary to determine that issue now.

6․The preliminary examination informs the decision whether or not to give leave for the disclosure of protected confidences pursuant to s 79H. In civil proceedings, the court may give leave for the disclosure of a protected confidence only if satisfied that the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence. The various matters referred to in s 79H(3) must be considered.

7․In the present case, the relevant records were produced on a flash drive. When printed, they comprised 507 pages of medical records from the general practice attended by the plaintiff. It was necessary to read every page of those documents in order to find out whether or not they contained “protected confidence evidence”. Protected confidence evidence is defined in s 79 by reference to the defined term “protected confidence” in s 79A, which in turn is defined by reference to a “counselling communication” in s 79A(3), the definition of “counselling” and “counsellor” in s 79 and the undefined concept of a “counselling relationship”. “Counselling” is extremely broadly defined, extending to “treatment for [a]… psychological condition”. That has the potential to capture many traditional medical records which do not appear to involve the sort of counselling disclosures that the legislature was intending to protect from misuse in court proceedings. That is particularly so when the scope of protection extends to communications in the course of the “counselling relationship”, which is an undefined term.

8․I observe that the legislature may have had a different understanding of what it was doing when enacting these provisions. While these provisions are plainly directed at a matter that the legislature considered to be significant, they do impose a substantial burden on the court, because the breadth of documents potentially caught by the requirements extends well beyond what might be considered the core category of records that the legislature was addressing. The provisions require a judge to read in chambers large volumes of materials produced in order to determine the extent to which “counselling communications” are contained within them and then to make a decision about their disclosure. Because of the breadth of the definitions, that can require reading substantial volumes of material which bear little relationship to the core concerns of the legislature about protecting counselling records from misuse in court proceedings.

9․In the present case, having read the 507 pages of records, there is very little in those records which relates to the psychological condition of the plaintiff. There are some references to Post-Traumatic Stress Disorder, usually in the context of simply recording an aspect of his past medical history. There are some references to compensation from the Navy or a potential claim for compensation for the Navy. There is a referral to a psychiatrist relating to his psychological issues. There is therefore not any material of significance where the public interest in ensuring that victims of sexual offences receive counselling or treatment would tend against disclosure. Similarly, the material is not material the disclosure of which might dissuade victims of sexual offences from seeking counselling or treatment. On the other hand, the medical history disclosed in the medical records is a busy one and it will be of significance in the proper assessment of the plaintiff’s claim and hence in the proper preparation and conduct of the case.

10․When regard is had to the nature of the communications recorded in the medical notes and the significance of the busy medical history disclosed in those notes for the proper assessment of the plaintiff’s claim, there is no doubt that, having regard to the matters in s 79H(3), the threshold requirement in s 79H(1)(a) is met. I consider it appropriate to grant leave under s 79H to the disclosure of the protected confidences in the material produced.

Orders

11․The orders of the Court are:

1.Leave is granted for the disclosure of the protected confidences contained within the records produced by the Mt Sheridan Medical Practice in response to the subpoena dated 22 November 2023 (S2875002).

2.The defendant has first access to the documents produced until 15 December 2023 and has leave to uplift the documents for 24 hours for the purposes of copying on the condition that it provides an electronic copy of all documents produced to the plaintiff and thereafter both parties have access.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 15 December 2023