Francis (a pseudonym) v Commonwealth of Australia

[2023] ACTSC 222

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Francis (a pseudonym) v Commonwealth of Australia

Citation: 

[2023] ACTSC 222

Hearing Date: 

11 August 2023

Decision Date: 

11 August 2023

Before:

Curtin AJ

Decision: 

(1)     The parties are given leave, nunc pro tunc, pursuant to s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to disclose in and for the purposes of this proceeding the protected confidences contained in Annexure B to the affidavit of Ms Jiadi Liang affirmed 24 July 2023.

(2)     Until further order of the Court the publication of:

(a)     the name of the plaintiff; and

(b)     information which discloses the identity of the plaintiff; and

(c)     information from which the identity of the plaintiff might reasonably be inferred; and

(d) protected identity information about the plaintiff, within the meaning of s 79I of the Evidence (Miscellaneous Provisions) Act 1991 (ACT);

is forbidden under s 79I of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

(3) Note that the term “publication” in Order 2 has a corresponding meaning to the word “publish” in s 81J of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), being to communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information.

(4)     Note that Order 2 does not prevent the publication of the information in Order 2(a) to (d) by or to the Court, parties, legal representatives and witnesses within and during the course of the hearing of these proceedings.

(5)     Other than in accordance with an order of a judge of the Court, there shall be no public access to the Court file other than by the parties or their legal representatives.

(6)     Grant leave to the defendant to issue subpoenas to the Ramsay Clinic Cairns and Open Arms.  

(7)     There be no access by either party to the documents produced in answer to the subpoenas issued in accordance with Order 6 without an order of a judge of this Court.

(8)     I direct the plaintiff to produce to the Court all documents in his possession sourced from Mt Sheridan Medical Practice Cairns on the same date the subpoenas issued in accordance with Order 6 are returnable.

(9)     There be no further disclosure of the Mt Sheridan Medical Practice Cairns documents without an order of a judge of this Court.

(10)    The plaintiff be referred to by a pseudonym “Alan Francis”.

(11)    Costs be costs in the cause.

Catchwords: 

CIVIL PRACTICE AND PROCEDURE – PUBLIC INTEREST IMMUNITY– Sexual violence communications privilege – Application for leave to issue subpoenas and disclose protected confidence in and for the purposes of the proceedings– leave sought nunc pro tunc for records already disclosed to defendant– application granted

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79D, 79F, 79G, 79H, 79I, 81J

Cases Cited: 

Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157

Parties: 

Alan Francis (a pseudonym) ( Plaintiff)

Commonwealth of Australia ( Defendant)

Representation: 

Counsel

D Campbell SC ( Plaintiff)

J Liang ( Defendant)

Solicitors

Porters Lawyers ( Plaintiff)

Norton Rose Fulbright ( Defendant)

File Number:

SC 24 of 2023

CURTIN AJ:  

EX TEMPORE (REVISED)

Introduction

1․I have before me an application made pursuant to s 79D and s 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), for documents produced by Ramsay Clinic Cairns to be disclosed in these proceedings, and an application for leave to serve subpoenas on Ramsay Clinic Cairns and an organisation known as Open Arms.

2․The proceedings involve a claim by the plaintiff for childhood sexual abuse whilst a junior recruit and member of the Royal Australian Navy between about mid-1969 to mid-1971.

Background

3․The proceedings were commenced on 20 January 2023.

4․On 22 February 2023, the plaintiff served material from Ramsay Clinic Cairns upon the defendant in purported compliance with provisions of the Civil Law (Wrongs) Act 2002 (ACT). Although the intent behind the service of that material was admirable in the sense of being an intention to comply with provisions of the Civil Law (Wrongs) Act, that disclosure was prima facie in breach of the protected confidence provisions of the Evidence (Miscellaneous Provisions) Act.

5․The point does not arise for decision in this case, but I would be inclined to the view that where there is conflict between the requirement for provision of information and documents under the Civil Law (Wrongs) Act and provisions of the Evidence (Miscellaneous Provisions) Act preventing disclosure, then the latter should prevail.

6․In any event, the material was disclosed, and I am asked to retrospectively authorise the disclosure of the Ramsay Clinic Cairns material.

7․In addition, the disclosed Ramsay Clinic Cairns material does not appear to be the complete records held by that organisation in relation to the plaintiff. Accordingly, the defendant seeks leave to issue a subpoena to Ramsay Clinic Cairns for the complete records to be produced.

8․On 22 February 2023, the plaintiff’s solicitors also disclosed records from the Department of Veteran’s Affairs to the defendant. Those records included a reference to the plaintiff seeking counselling from the Department. The defendant understands that counselling services for those who served in the Australian Defence Force are provided by the organisation Open Arms.  The defendant seeks leave to issue a subpoena to Open Arms to produce counselling records in relation to the plaintiff (if any).

9․The plaintiff is in possession of documents produced from Mt Sheridan Medical Practice Cairns. The defendant does not have a copy of these records. The plaintiff asserts these records constitute protected confidence material pursuant to the Evidence (Miscellaneous Provisions) Act. The defendant seeks leave for access to these documents.

Decision

10․In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157, McCallum CJ described the operation of the protected confidence legislation and described the three occasions in which the Court's leave is required. The third occasion is not relevant to this judgment.

11․In relation to the material that has been disclosed and the material sought to be subpoenaed, and in relation to the first occasion mentioned in Stanley, I am satisfied that there is a legitimate forensic purpose in seeking that material and I am satisfied that there is an arguable case that the relevant evidence would materially assist the defendant's case in the proceedings.

12․In relation to the second occasion mentioned in Stanley, namely when the Court must conduct a preliminary examination of the documents produced to decide whether leave should be given for disclosure of the protected confidence, the test is different and more stringent.

13․The Court must have regard to the matters set out in s 79H in making a decision to disclose the protected confidence and only after conducting a preliminary examination of the relevant material (see s 79G).

14․An important matter in s 79H(3) is whether the person to or by whom the protected confidence was made objects to the disclosure. In this case, disclosure of the protected confidence was made by the plaintiff. Self-evidently the plaintiff thereby consents to the disclosure. There is no evidence that the disclosure was sought on the basis of any discriminatory belief or bias (see s 79H(3)(f)).

15․Both parties submit, and I accept, that (per s 79H) the (protected confidence) evidence which I have read will have a substantial probative value in relation to facts in issue in the case, that there is a likelihood the disclosure of the material will affect the outcome of the case, and I am not satisfied that there is other evidence of similar or greater probative value about the matters to which the evidence relates.

16․I have taken into account (per s 79H) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment and I have taken into account the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment.

17․I am satisfied that the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence and will therefore grant leave for the disclosure of that information.

18․As for the subpoenas, that issue only requires (at this point in time) satisfaction that there is a legitimate forensic purpose for seeking the leave and that there is an arguable case that the evidence in relation to which leave is sought would materially assist the defendant's case. The nature of the materials is in terms of treatment and medical opinions obtained in a period before proceedings were commenced. They satisfy the test set out in s 79F. When the documents are produced to the Court, the Court can then proceed to the second stage of seeking leave for disclosure.

19․I note the defendant has also sought disclosure and access to documents produced by the Mt Sheridan Medical Practice Cairns. Such documents are in the plaintiff's solicitor's possession but have not yet been disclosed to the defendant. With the consent of the parties, the plaintiff has undertaken to produce those documents to the Court on the same date as the contemplated subpoenas are returnable. Such documents will then be kept with the Court and the question about disclosure can be addressed at the same time as the question of disclosure of the subpoenaed documents.

Orders

20․I make the following orders:

(1)The parties are given leave, nunc pro tunc, pursuant to s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to disclose in and for the purposes of this proceeding the protected confidences contained in Annexure B to the affidavit of Ms Jiadi Liang affirmed 24 July 2023.

(2)Until further order of the Court the publication of:

(e)the name of the plaintiff; and

(f)information which discloses the identity of the plaintiff; and

(g)information from which the identity of the plaintiff might reasonably be inferred; and

(h)protected identity information about the plaintiff, within the meaning of s 79I of the Evidence (Miscellaneous Provisions) Act 1991 (ACT);

is forbidden under s 79I of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

(3)Note that the term “publication” in Order 2 has a corresponding meaning to the word “publish” in s 81J of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), being to communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information.

(4)Note that Order 2 does not prevent the publication of the information in Order 2(a) to (d) by or to the Court, parties, legal representatives and witnesses within and during the course of the hearing of these proceedings.

(5)Other than in accordance with an order of a judge of the Court, there shall be no public access to the Court file other than by the parties or their legal representatives.

(6)Grant leave to the defendant to issue subpoenas to the Ramsay Clinic Cairns and Open Arms.  

(7)There be no access by either party to the documents produced in answer to the subpoenas issued in accordance with Order 6 without an order of a judge of this Court.

(8)I direct the plaintiff to produce to the Court all documents in his possession sourced from Mt Sheridan Medical Practice Cairns on the same date the subpoenas issued in accordance with Order 6 are returnable.

(9)There be no further disclosure of the Mt Sheridan Medical Practice Cairns documents without an order of a judge of this Court.

(10)The plaintiff be referred to by a pseudonym “Alan Francis”.

(11)Costs be costs in the cause.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.

Associate:

Date: