HM v Sister Mary Monaghan - [2024] VSC 257

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S CI 2022 01270

HM (a Pseudonym)	Plaintiff
v
Sister Mary Monaghan	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	20 May 2024
CASE MAY BE CITED AS:	HM v Sister Mary Monaghan
MEDIUM NEUTRAL CITATION:	[2024] VSC 257

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PRACTICE AND PROCEDURE — Leave to compel production of clinical records containing ‘confidential communications’ under section 32C Evidence (Miscellaneous Provisions) Act 1958 (Vic) — Whether application for leave is necessary if plaintiff consents to production — Operation of section 32E(1)(a) — KR v BR [2018] VSCA 159 — Skarbek v The Society of Jesus in Victoria & Ors [2016] VSC 622 — Application for leave unnecessary.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	G Boas	Ken Cush & Associates
For the Defendant	S Hay KC with C Morshead	Wotton & Kearney

HIS HONOUR:

The plaintiff, HM, brings this proceeding claiming damages for personal injury she alleges resulted from being sexually, physically and psychologically abused by three unidentified priests and other staff while living at Nazareth House, Brisbane between July 1961 and late 1967 in the care of the Congregation of the Sisters of Nazareth (‘Sisters’). The defendant, Sister Mary Monaghan, is the nominated proper defendant for the Sisters within the meaning of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).

The defendant seeks general discovery of the plaintiff’s clinical records from Roxby Downs Family Practice (‘clinical records’) pursuant to the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) or, in the alternative, leave to compel their production pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘EMP Act’). The parties agree that the clinical records contain ‘confidential communications’ as defined in pt II div 2A of the EMP Act. The only issue to be resolved is whether, in circumstances where the plaintiff consents, the defendant is required to apply under s 32C of the EMP Act for leave to compel production of the clinical records.

Evidence

The plaintiff relies on affidavits of her solicitor, Sangeeta Sharmin, affirmed 20 February 2024, 6 March 2024 and 3 April 2024.

The defendant relies on affidavits of her solicitor, Richard Leder, sworn 19 February 2024, 1 March 2024, 7 March 2024 and 11 April 2024.

Application

On 8 March 2024, the defendant applied for orders that:

1. Pursuant to r 29.05.1 and/or r 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), by 15 March 2024 (or at the earliest available date after the Court rules on this application) the plaintiff is to make further general discovery and/or particular discovery in relation to the following categories of documents that are within the plaintiff’s possession, custody or control:
(a) Item 1.3 of Part 1 of Schedule 1 of the plaintiff’s affidavit of documents filed 26 July 2023, being a copy of the clinical records from Roxby Downs Family Practice (the Roxby Downs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HM v Sister Mary Monaghan

Details

AGLC: HM v Sister Mary Monaghan [2024] VSC 257
Case: [2024] VSC 257
Decision Date: 20 May 2024

CaseChat Overview and Summary

The case of HM v Sister Mary Monaghan involved a plaintiff who sought to compel the production of clinical records from a nun who was her former spiritual adviser. The plaintiff sought the records under section 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), which allows for the disclosure of confidential communications in certain circumstances. The defendant, Sister Mary Monaghan, argued that the application for leave to compel production was necessary as the records contained confidential communications protected by law.

The primary legal issue before the court was whether an application for leave was necessary to compel the production of the clinical records, despite the plaintiff’s consent to their disclosure. This issue hinged on the interpretation of section 32E(1)(a) of the Act, which provides exceptions to the requirement for leave when certain conditions are met. The court needed to determine if the plaintiff's consent alone was sufficient to bypass the requirement for leave, and if so, whether this aligned with the exceptions outlined in the statute.

The court concluded that the application for leave was unnecessary, as the plaintiff's consent to the production of the records sufficed under section 32E(1)(a) of the Act. The reasoning was based on the interpretation that the provision allows for the disclosure of confidential communications when the plaintiff consents, thus falling within the statutory exceptions. This decision was supported by references to previous cases such as KR v BR and Skarbek v The Society of Jesus in Victoria & Ors, which provided precedent for similar interpretations of the statute. The court found that the statutory framework permitted the plaintiff’s consent to be a sufficient condition for disclosure, without necessitating leave.

The final orders of the court were that the application for leave was unnecessary, and the clinical records could be produced as the plaintiff had consented to their disclosure. This decision underscored the importance of statutory interpretation in determining the procedural requirements for compelling the production of confidential communications.

Orders