Gabe Mill (a pseudonym) v State of Victoria
[2025] VSC 74
•5 March 2025 (Revised, 7 March 2025)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2022 02000
| GABE MILL (a pseudonym) (BY HIS LITIGATION GUARDIAN HARLEY MILL (a pseudonym) | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF FAMILIES FAIRNESS AND HOUSING) | Defendant |
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JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 February 2025 |
DATE OF JUDGMENT: | 5 March 2025 (Revised, 7 March 2025) |
CASE MAY BE CITED AS: | Gabe Mill (a pseudonym) v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2025] VSC 74 |
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CIVIL PROCEDURE – Subpoena to produce documents to the Prothonotary – Supreme Court (General Civil Procedure) Rules2015, r 42A.08 – Objection to inspection based on confidentiality – Discretion to limit or condition inspection where documents produced are confidential – What is necessary for the attainment of justice – Role of written confidentiality undertaking in emphasising implied undertaking.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Arnold Thomas Becker |
| For the Defendant | Mr D Guthrie (Solicitor) | HWL Ebsworth |
| For the Objecting Party | Mr R Kornhauser | Social Services Regulator |
HER HONOUR:
The plaintiff suffered significant injuries whilst in the care of his former foster carers in October 2021. In this proceeding, the plaintiff (by his litigation guardian) sues the State of Victoria, Department of Families, Fairness and Housing, in respect of his injuries.
The plaintiff issued a subpoena to the Social Services Regulator (‘SSR’) dated 30 October 2024. The subpoena seeks:
[a]ll documents relating to an investigation in relation to allegations of abuse against [his former foster] Carer…’.
In compliance with the subpoena, the SSR produced to the Court a document titled ‘Independent Investigation Report Final’ dated 9 October 2024, to which there are 46 annexures (some of which themselves comprise multiple documents), authored by WISE Workplace (‘Investigation Report’).
By way of objection to inspection of the Investigation Report, the SSR seeks orders that:
(a) the plaintiff’s right of inspection be conditional upon appropriate confidentiality undertakings being given; and
(b) inspection not be permitted of Annexures 42 and 43.
The parties have agreed that the plaintiff will not inspect Annexures 15 and 44 to the Investigation Report, being documents which form part of the brief of evidence prepared by Victoria Police in relation to its criminal investigation.
The SSR and the statutory context
The SSR is a statutory body corporate established by the Social Services Regulation Act 2021 (Vic) (‘SSR Act’). The functions of the SSR as described in the SSR Act include:
to administer the worker and carer exclusion scheme (including the database of excluded workers and carers), based on a procedurally fair process for investigating and determining whether workers pose unjustifiable risks of harm to service users.[1]
[1]Social Services Regulation Act 2021 (Vic) (‘SSR Act’) s 13(1)(e).
Relevantly, in administering the carer exclusion scheme under Part 5 of the SSR Act, the SSR is empowered to investigate the conduct of foster carers, and upon completion of the investigation, determine whether to refer the matter to the Suitability Panel (as defined in s 317 of the SSR Act).[2] Prior to the commencement of the SSR Act, the analogous investigations and Panel hearings were conducted pursuant to Part 3.4 of the Children, Youth and Families Act 2005 (Vic) (‘CYF Act’). The SSR is responsible for continuing and completing pending investigations and referrals to the Suitability Panel under the CYF Act, pursuant to transitional provisions included in Part 11 of the SSR Act. The SSR’s investigations into allegations of abuse by the plaintiff’s former foster carers is subject to these transitional provisions.
[2]SSR Act 3(1) defines the ‘Panel’ which replaces the ‘Suitability Panel’.
An authorised investigator may be appointed to investigate allegations of abuse by foster carers. The investigator must provide a report that includes the findings of the investigation, which may include a finding that, on the balance of probabilities, the foster carer abused a child in their care. After receiving the report, a determination must be made whether to refer the matter for hearing by the Suitability Panel.
The role of the Suitability Panel is to determine whether a carer is to be disqualified from providing specified services (such as foster care). The Suitability Panel must first determine whether or not the allegation of abuse is proved on the balance of probabilities. If the Suitability Panel finds the allegation proven, then they must make a misconduct finding and consider whether the carer should be disqualified, weighing a series of statutorily prescribed factors.[3] Disqualification will be ordered where the Suitability Panel determines a person poses an unacceptable risk of harm to children.[4] The Suitability Panel determines its procedure at hearings, which are to be conducted with as little formality or technicality as possible. The Suitability Panel is not bound by the rules of evidence but is bound by the rules of natural justice.[5] A foster carer has the right to be present, to make submissions and be legally represented.[6] Under the CYF Act, Suitability Panel hearings are closed to the public.[7]
[3]Children, Youth and Families Act 2005 (Vic) (‘CYF Act’), s 106.
[4]CYF Act s 106.
[5]CYF Act s 116.
[6]CYF Act s 116.
[7]CYF Act s 115(2).
There are stringent confidentiality protections under the SSR Act, and in relation to investigations and Suitability Panel hearings conducted under the CYF Act. The Investigation Report is ‘protected information’[8] under the SSR Act to which the non-disclosure regime in Part 8 applies. Those who use or disclose protected information under the non-disclosure regime commit an offence and may be at risk of significant penalties.[9] Disclosure to a court pursuant to court order is permitted.[10] Relatedly, where a matter is referred to the Suitability Panel, the CYF Act imposes restrictions on the publication or broadcast of any information heard by the Suitability Panel that would enable identification of the person against whom the allegations of abuse are made, the child to whom the allegation relates, or, if so determined, the identity of a witness.[11]
[8]SSR Act s 188 (definition of ‘protected information’).
[9]SSR Act s 211.
[10]SSR Act s 192(1)(b).
[11]CYF Act s 131.
Investigation Report and referral to Suitability Panel
The plaintiff’s former foster carer has been the subject of an investigation into physical abuse allegedly committed by her, under Part 3.4 of the CYF Act (as then in force). The investigation was carried out by an independent investigator from WISE Workplace appointed on 8 February 2024.
On 7 November 2024, the SSR received the Investigation Report, which sets out the findings of that investigation. On 24 November 2024, the SSR decided to refer the matter to the Suitability Panel.
The matter has not yet been heard by the Suitability Panel. The SSR submits that a hearing before June 2025 is unlikely.
Confidentiality as a reason for denying inspection of subpoenaed documents
A party may object to a subpoena and seek to have it set aside (in part or in full) if it is an abuse of process. If a subpoena has been properly issued, the addressee must produce the subpoenaed documents. A party having a legitimate forensic purpose will not lightly be denied inspection of the documents produced. In particular, the fact that a document produced under subpoena contains highly sensitive or confidential information is not of itself a basis for objection to inspection of the document.[12] The implied undertaking, which prevents use of documents other than for the subject proceeding, usually provides sufficient protection to the party producing documents.[13] However, because documents produced under subpoena are produced to the Court, where the subpoenaed party has a legitimate claim to confidentiality (or similar) it may request that the Court exercise its discretion to limit or condition inspection.[14]
[12]Hera Project Pty Ltd v Bisognin (No 4) [2017] VSC 270, [39].
[13]Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 38 (Hayne JA, with whom Winneke P and Phillips JA agreed).
[14]Gunns Ltd v Marr [2008] VSC 464, [30] – [31].
Here, the SSR seeks that the court condition the plaintiff’s inspection of the document produced by limiting the right of inspection or subsequent disclosure of the document to those persons who have given a written confidentiality undertaking in terms directed by the Court. The SSR acknowledges that it bears the onus of establishing the confidentiality of the document in respect of which it seeks to condition inspection.[15] It also acknowledges that, in determining whether to exercise its discretion, the Court must decide what is necessary for the attainment of justice.[16]
[15]Gunns Ltd v Marr [2008] VSC 464, [33]; Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358, [17].
[16]Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 38, 40 (Hayne JA, with whom Winneke P and Phillips JA agreed).
Determining what is necessary for the attainment of justice involves balancing the risk and consequences of disclosure on the one hand, and the benefits of unfettered access, including to facilitate the giving of advice and instructions to permit a full presentation of a party’s case, on the other. This in turn typically requires consideration of:
(a) the nature and content of the document;
(b) the magnitude of the risk of loss of confidentiality;
(c) any potential prejudice resulting from such loss;
(d) the identity of the persons who will inspect the documents;
(e) the reasons such inspection is necessary; and
(f) the extent to which a party may be hampered in the preparation and presentation of its case.[17]
The nature and content of the document will usually be of great importance in forming the conclusion and so inspection of the document by the presiding judicial officer may be appropriate.
[17]Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [139]; Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663 at [7].
The courts will also have regard to the sufficiency of the protection that will likely be afforded by the implied undertaking. Self-evidently, the sufficiency of that protection reduces as use and disclosure of the sensitive information is proposed beyond those who are obviously bound by the undertaking, such as the parties, solicitors and counsel, to lay witnesses or other third parties whose understanding of the circumstances of production of the documents and the implied limitation on their use cannot be presumed.
The mechanism that a court might select to balance the competing considerations will be fashioned to meet the circumstances of a particular case and it is not possible to formulate rules of universal application.[18] In the commonly encountered circumstances of discovery, to trade rivals, of documents recording trade secrets, the courts have frequently determined to limit access to the discovered documents to a party’s external lawyers and Counsel.[19] In other cases, the courts have required personal confidentiality undertakings to be given in order to permit inspection. A written undertaking gives explicit emphasis in the minds of those giving it as to how important it is that the documents only be used for the purpose of proceedings.[20] Whether giving that emphasis is appropriate depends on what is necessary for the attainment of justice in a particular case.
[18]Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 40 (Hayne JA, with whom Winneke P and Phillips JA agreed).
[19]Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [138].
[20]Hearn v Street (2008) 235 CLR 125, 162 [116]; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550, [36]; Kirby v Centro Properties Ltd [2009] FCA 695, [35]–[36].
Whilst the cases cited by the parties in support of the foregoing principles are mostly cases concerning the disclosure, on discovery, of trade secrets to trade rivals, the Court’s power to limit access to confidential documents produced under compulsion is not limited to circumstances involving trade rivals. In this regard, in Warburton Environment Inc v VicForests (No 3),[21] Garde J restricted access to documents produced on discovery by VicForests on the basis that disclosure of the information they contained might harm its commercial interests. The documents contained commercially sensitive contractual terms relating to pricing, rates review procedures, payments, performance, security, volumes and supply. His Honour limited access to the external lawyers and counsel engaged by the other party, Warburton Environment, which was a not for profit, community organisation devoted to protecting local forests. In doing so he determined that the interests of justice lay in preventing harm that may be caused by disclosure, even if accidental or fortuitous, given the irrelevance of the documents to the issues in dispute, VicForests’s obligations of confidentiality to third parties and the unlikelihood that Warburton Environment would be affected by the restriction.
[21][2021] VSC 35.
In I Cook Foods Pty Ltd v State of Victoria (Department of Health and Human Services),[22] Daly AsJ required the provision of confidentiality undertakings from the plaintiff company, its solicitors and counsel as a condition of their obtaining access to documents produced on preliminary discovery by the State of Victoria. In doing so, her Honour acknowledged that while there was no evidence of any risk of disclosure, the adverse consequences of any disclosure were such that the interests of justice warranted access being conditioned on the giving of a confidentiality undertaking which emphasised the sensitivity of the documents in the minds of each person who signed it.[23]
[22][2020] VSC 39.
[23]I Cook Foods Pty Ltd v State of Victoria (Department of Health and Human Services) [2020] VSC 39, [74].
I am satisfied, for the reasons elaborated below, that it is necessary for the attainment of justice to impose a confidentiality regime in respect of the Investigation Report broadly in the form sought by the SSR, with one substantial amendment. That substantial amendment is that rather than requiring the plaintiff to seek the SSR’s consent or leave of the Court prior to disclosing the Investigation Report to his witnesses, the plaintiff will be permitted to disclose the report to any of his witnesses who have signed an undertaking in the form required. In reaching this conclusion, I have inspected the Investigation Report as produced.
I am satisfied that the information contained in the Investigation Report is extremely sensitive. Its contents reveal:
(a) the identity of the former foster carer the subject of the investigation;
(b) the findings of the investigator regarding the allegations of physical abuse (in circumstances where the Suitability Panel will make its own findings);
(c) the identity of the plaintiff (noting the plaintiff’s identity in the proceeding is protected by a pseudonym order); and
(d) the identity of witnesses who may be called to give evidence at the Suitability Panel hearing, in circumstances where the Suitability Panel has not yet had cause to consider whether it will order that their identities be kept confidential.
Further, and in addition to health and welfare related information concerning the former foster carer and the plaintiff, the report also contains health and welfare related information about persons less directly connected with the events, such as the former foster carer’s biological children. The information recorded in the report is all information that is protected from unauthorised use and disclosure under the provisions of the SSR Act, and also the CYF Act in so far as it will form part of the record before the Suitability Panel.
The plaintiff’s counsel submitted that additional protection in the form of a confidentiality regime was not warranted because the ‘cat is out of the bag’ in terms of the information about the circumstances in which the plaintiff came to be injured at the hands of the former foster carer, which are at the centre of the proceeding. The plaintiff contends that a huge amount of information has already been disclosed in the proceeding concerning the same subject matter. Certainly, the contents of the Investigation Report are relevant to the proceeding, relating as they do to the events that are central to the plaintiff’s case against the defendant. However, the Court cannot be assured that information of precisely the same contents and nature revealed within the Investigation Report has already been disclosed in the proceeding. It would seem unlikely given the nature of the Investigation Report and its purposes within the specific statutory context described earlier in these reasons. Regardless, the information relating to the biological children of the former foster carer is very unlikely to be disclosed in other material.
The plaintiff’s Counsel also submitted that the SSR Act specifically permits disclosure to the Court, without requiring any steps be taken to limit disclosure following production. Certainly the SSR Act contemplates production by the SSR pursuant to a Court order such as a subpoena. However, that does not preclude the Court from exercising its discretion to limit inspection of the documents as may be necessary for the attainment of justice. The carefully enacted legislative framework which regulates the collection, use and disclosure of information such as that contained within the Investigation Report acknowledges the sensitivity of the information to which the SSR and its investigators have access in the discharge of their functions, and protects the public interest in preserving the confidentiality of that information against misuse. The Court is satisfied that the attainment of justice warrants the additional layer of protection being afforded to the information as a condition of inspection of it.
The plaintiff also submitted that there was no evidence of any risk of disclosure of the information contained in the Investigation Report. In so far as this submission relies on the authorities which identify the magnitude of the risk of loss of confidentiality as a factor to be weighed in the assessment of what is necessary for the attainment of justice, in my view, that does not measure the probability of disclosure, but the size of the risk that disclosure carries in terms of adverse consequence. Such risk of loss of confidentiality is, therefore, particularly large in the case of trade rivals where the disclosure relates to their trade secrets.[24] In this case, as in others,[25] there is no evidence of there being any real probability of disclosure without a confidentiality undertaking. However, the SSR has addressed in its evidence and submissions the magnitude of the risk of disclosure, being the potential loss of confidentiality over highly sensitive information (including health and welfare information about children) that would otherwise attract the protection of a stringent statutory regime. The magnitude of the risk of disclosure that is reflected in the relevant legislative protections given to the information contained in the Investigation Report is a material consideration in determining, in the Court’s discretion, who should be given access to the information after its production to the Court and on what conditions.
[24]Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 [139]-[140].
[25]I Cook Foods Pty Ltd v State of Victoria (Department of Health and Human Services) [2020] VSC 39; Warburton Environment Inc v VicForests (No 3) [2021] VSC 35.
The imposition of the confidentiality regime will have the effect, which is desirable, of emphasising the sensitive nature of the document and the obligation of confidence on each person to whom it is disclosed. Whilst the plaintiff’s solicitor gave evidence that he would summarise the obligations that arise from the implied undertaking to any witness who is to be provided with access to the Investigation Report, in the Court’s view, the acts of reading (as opposed to listening to) and executing a written confidentiality undertaking, and the fact that the signatory has the ability to look back at the executed document to remind themselves of the obligation accepted, are likely to have a greater impact on lay persons and ensure greater protection from inadvertent disclosure. Whilst the Court has confidence that counsel and solicitors for the plaintiff understand and will comply with their obligations, nevertheless, the Court does not regard the imposition of the confidentiality regime upon all persons accessing the document on the same terms to pose any additional burden on those solicitors and counsel.
Subject to the amendment I foreshadowed above at 21, I am satisfied that the plaintiff will not be unreasonably hampered in the preparation of his case. The SSR’s proposal does not seek to limit access only to solicitors and counsel, does not prevent the plaintiff, by his litigation guardian, from accessing the Investigation Report so as to provide instructions, and does not impose restrictions on the use of the Investigation Report in open court in due course.
The SSR sought to include a condition, which the Court will not impose, requiring the plaintiff to obtain its consent, or the approval of the Court, prior to disclosing the Investigation Report to any of its lay witnesses. Counsel for the SSR quite properly conceded that the ability of a non-party to interfere with the plaintiff’s case preparation, such as where a plaintiff would need to obtain consent to disclose a subpoenaed document to its lay witnesses, would be atypical. The SSR submits that its reasons for seeking to include this condition arise from its concern about the potential overlap in witnesses being called by the plaintiff, who are also called to appear before the Suitability Panel. The SSR described the possibility that such overlapping witnesses would have access to the Investigation Report before giving their evidence at the Suitability Panel hearing as having the potential to undermine their credibility and as being inconsistent with the former foster carer’s right to be afforded natural justice.
It is difficult to see how the SSR’s concern could result in a denial of natural justice to the former foster carer, who has the right to be present, to make submissions and to be represented before the Suitability Panel hearing at which any findings adverse to her might be made. The concern appears to be directed more to the issue of potential contamination of a witness’s evidence where, upon receiving the Investigation Report, the witness sees what the other witnesses are going to say. Presumably, there is little forensic utility in any lay witness of the plaintiff being shown the statements of other witnesses, if any, included in the Investigation Report, and so the risk of actual contamination is likely very low. However, more critically, the SSR is not presently in a position to say whether there will, in fact, be any overlapping witnesses and who they might be as it does not presently know the identity of any witnesses to be called. The Suitability Panel hearing may not occur for some months and the plaintiff may wish to commence his lay witness preparations now. In my view any requirement that the plaintiff has to seek consent of the SSR is made worse by the very real prospect that, at the time of any such request, the SSR may still not know which witnesses are being called for the Suitability Panel hearing and so may not be in a position to provide any answer, whether to the plaintiff, or to the Court if an application is made. The restriction is, therefore, unreasonable when compared with the risk of adverse consequences if not imposed and overly burdensome on the plaintiff in terms of his ability to prepare and present his case.
Annexures 42 and 43 to the Investigation Report
The SSR objects to inspection by the plaintiff of Annexures 42 and 43 of the Investigation Report. The SSR submits that these annexures comprise the child protection files in relation to the former foster carers’ two biological children. My inspection of these annexures confirms this to be so. It is further submitted that they ‘appear to pertain to an investigation conducted by the defendant’s After Hours Child Protection Emergency Service’ after the plaintiff suffered the injuries the subject of this proceeding. Certainly, the documents include notes of interviews conducted by the After Hours Child Protection Emergency Service (‘AHCPES’) at the former foster carers’ home at approximately 3:20am on the day after the plaintiff was hospitalised. However, the documents also comprise records of Case Notes created on dates some weeks and months after that initial attendance by AHCPES, as well as extracts of computer records and medical reports. Following my inspection of the Annexures 42 and 43, I do not believe that these annexures pertain solely to the AHCPES investigation.
Given this, I do not accept the submission that allowing access to the documents that comprise of Annexures 42 and 43 would have the effect of inadvertently subverting the limitation on discovery of documents relating to the AHCPES investigation that was effected by the Court accepting the more limited discovery category 1(c) as was proposed by the plaintiff at the hearing of his application for specific discovery by the defendant. I am satisfied that no abuse of process arises. It is relevant too that the defendant, which was on notice of the subpoena and appeared at the subpoena objection hearing, did not:
(a) seek first access to determine whether documents relating to the AHCPES investigation, which had been limited in the discovery orders that I made on 19 November 2024, appeared amongst those documents which comprise Annexures 42 and 43; or
(b) make any objection of its own to inspection of these Annexures, or the parts of them that might relate to the AHCPES investigation, for the same reasons as it objected to discovery.
The Annexures are attached to, and form part of the Investigation Report, which falls within the scope of the subpoena. The SSR does not, and could not reasonably, contend that the plaintiff did not have a legitimate forensic purpose in issuing the subpoena which captures the Investigation Report. Therefore the subpoena was valid, and had to be complied with. The SSR’s objection in this application relates to what the Court described, in Niederle v McIntosh,[26] as the ‘second step’, being consideration of whether the Court will permit inspection of the documents produced.
[26][2021] VSC 462, [16].
The SSR has not submitted that Annexures 42 and 43 ought be excluded from the inspection because they are both confidential and wholly irrelevant. I have inspected these Annexures and I am satisfied that, whilst they do contain irrelevant and sensitive information concerning the health and welfare of the former foster carers and their biological children, they also contain information that is likely to be relevant to the issues in dispute in the proceeding. The SSR has not proposed to redact parts of the Annexures to mask confidential and irrelevant information, and it would be a difficult exercise that might impact the understandability of the Annexures in any event. Given that I will impose a confidentiality regime in respect of the Investigation Report, I am satisfied that the confidentiality of the irrelevant and sensitive information contained in these Annexures will be suitably protected.
Costs of the subpoena objection
There was no argument before me regarding the costs of the subpoena objection hearing. The SSR was successful in seeking orders to condition inspection of the subpoenaed document upon the giving of a Court ordered confidentiality undertaking. Costs should follow the event, however, in its proposed form of order provided to the Court by email on the morning of the hearing of its objection, the SSR included an order to the effect that there be no order as to costs of the subpoena objection hearing. Given the SSR’s position, I will make that order.
Disposition
I will make orders permitting inspection of the Investigation Report (save for Annexures 15 and 44 which have been excluded by agreement) by the plaintiff’s legal representatives subject to the condition that the Investigation Report may only be:
(a) inspected and copied by the parties’ legal representatives who have first signed a confidentiality undertaking on terms to be ordered by the Court; and
(b) used and disclosed in accordance with the terms of that undertaking.
The Court requests that the parties confer for the purpose of preparing a form confidentiality undertaking which takes account of these reasons, and which identifies the time period over which the confidentiality obligations shall continue to apply.
There will be no order as to costs.
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