Kelley Jeffries (a pseudonym) v ACT; Sabrina Cooke (a pseudonym) (by her litigation guardian Kelley Jeffries (a pseudonym)) v ACT

[2023] ACTSC 239

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kelley Jeffries (a pseudonym) v ACT; Sabrina Cooke (a pseudonym) (by her litigation guardian Kelley Jeffries (a pseudonym)) v ACT
Citation:	[2023] ACTSC 239
Hearing Date:	4 August 2023
Decision Date:	1 September 2023
Before:	Curtin AJ
Decision:	(1) Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), it is ordered, until further order, that the plaintiff in proceedings SC 162/2023 be referred to in the proceeding (including in any document to be filed with the Court, and in any affidavit or statement to be relied upon in the Court, save for the jurat of any affidavit required to be sworn) only by
the pseudonym “Kelley Jeffries”.
(2) Pursuant to s 111(2)(c) of the Evidence (Miscellaneous the plaintiff in proceedings SC 163/2023 be referred to in the proceeding (including in any document to be filed with the Court, and in any affidavit or statement to be relied upon in the Court, save for the jurat of any affidavit required to be sworn) only by
the pseudonym “Sabrina Cooke”.
(3) Pursuant to s 111(2)(c) of the Evidence (Miscellaneous the son of the plaintiff in proceedings SC 162/2023 and the brother of the plaintiff in proceedings SC 163/2023 be referred to in the proceeding (including in any document to be filed with the Court, and in any affidavit or statement to be relied upon in the Court, save for the jurat of any affidavit required to be sworn)
only by the pseudonym “Finn Cooke”.
(4) Pursuant to s 111(2)(c) of the Evidence (Miscellaneous the disclosure (by publication or otherwise) of information or particulars that might enable the persons referred to in Orders 1- 3 above to be identified or that would reveal their identity, other than by use of their pseudonyms, be prohibited save for:

(a) in any subpoena for production and/or attendance or notice for non-party production, in which it is reasonably necessary to identify the persons referred to in Orders 1- 3 above by their true names;

(b) in communications between the legal representative
for the parties, in which it is reasonably necessary to
identify the persons referred to in Orders 1-3 above by
their true names;

(c) in communications necessary for the conduct of the

proceedings between the legal representatives for the
parties and any party, witness or other person(s), in
which it is reasonably necessary to identify the persons
referred to in Orders 1-3 above by their true names,

provided that:

(i) all such communications are conducted on a
strictly confidential basis; and
(ii) a copy of these orders is provided to any
witness or other person(s) with whom such

communications are conducted.

(5) The parties have leave to file amended pleadings adopting
the pseudonyms in place of the names of the persons referred to

in Orders 1-3 above.

(6) The defendant to provide to the plaintiffs’ solicitors any

documents that fall within s 68(1) of the Civil Law Wrongs Act
2002 (ACT) that are neither protected information under s 844 of
the Children and Young People Act 2008 (ACT) nor sensitive

information under s 845 of that Act, including the documents

referred to in paragraph 2 of the letter from the plaintiffs’

solicitors dated 13 April 2023, which is annexure “HR2” to the

affidavit of Ms Ross sworn 7 July 2023, by 1 September 2023.
(7) That, 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.

(8) Liberty to apply on 3 days notice.

Catchwords:	CIVIL LAW – PRACTICE AND PROCEDURE – Protected and sensitive information – application for an order that protected and sensitive information be provided to the Court – application
for an order that access to protected and sensitive information be provided to the parties - procedures to be adopted in an application pursuant to s 866 of the Children and Young People
Act 2008 (ACT) – whether the territory is an “information holder” pursuant to s 843 of the Act – best interests of a child
Legislation Cited:	Children and Young People Act 2008 (ACT), ss 8, 9, 336, 349, 529L, 843, 844, 845, 846, 847, 848, 849, 864, 865, 866 Civil Law (Wrongs) Act 2002 (ACT), s 68 Court Procedures Rules 2006 (ACT), rr 6007, 6601 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111
Public Sector Management (Children and Young People) Delegation 2022 (No 1)
Cases Cited:	Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR
531; [2014] HCA 9
Parties:	Kelley Jeffries (a pseudonym) (Plaintiff in SC 162 of 2023)
Sabrina Cooke (a pseudonym) (Plaintiff in SC 163 of 2023)
Australian Capital Territory (Defendant)
Representation:	Counsel
K Oldfield (Plaintiffs) V Thomas (Defendant)
Solicitors
Commins Hendriks (Plaintiffs)
ACT Government Solicitor (Defendant)
File Numbers:	SC 162 & 163 of 2023
CURTIN AJ:
Introduction
1․	This is an application in two proceedings for access to protected and sensitive
information as defined in the Children and Young People Act 2008 (ACT) (the CYP Act).
2․	Under the CYP Act access to protected and sensitive information (the sought-after
material) is prohibited unless provided for in the CYP Act. One such provision allows for
access by order of the Court: s 866. None of the other provisions allowing for access via
the processes of the Court other than s 866 apply in this case.
3․	The circumstances in which an order may be made under s 866 are severely
circumscribed by the terms of the CYP Act, and there are a number of provisions in that
Act which significantly affect the procedure to be followed in seeking such an order.
4․	As those circumstances and provisions have not previously been the subject of judicial
attention the parties were in some doubt as to the appropriate path forward.
5․	This judgment addresses the relevant circumstances and the procedural steps to be
undertaken if access to protected and sensitive information is sought pursuant to s 866
of the CYP Act.
6․	Some material in the published version of this judgment has been redacted to avoid any
identification of the relevant persons.

Background

7․	The allegations in the two proceedings are these.
8․	The two plaintiffs are Kelley Jeffries (a pseudonym) and Sabrina Cooke (a pseudonym).
Kelley Jeffries is the mother of Sabrina Cooke.
9․	Finn Cooke (a pseudonym) was the son of Kelley Jeffries and the brother of Sabrina
Cooke.
10․	Finn Cooke died as a result of [redacted] inflicted upon him by [redacted] when he was
about [redacted] years old. At the time of his death he had suffered [redacted].
11․	Sabrina Cooke did not escape similar treatment from [redacted]. On the night her brother
died she, then being [redacted] of age, [redacted] having suffered:

(a) [redacted];

(b) [redacted];

(c) [redacted];

(d) [redacted];

(e) [redacted];

(f) [redacted];

(g) [redacted].

12․	Prior to those events there are allegations of gross domestic violence having been
committed by [redacted] against [redacted] over many years commencing [redacted] and
when [redacted].
13․	Multiple reports were made to the Child and Youth Protection Service (the CYPS)
concerning the children commencing in [redacted].
14․	Those reports, together with certain other information and documents (being the sought-
after material in this case) are held by the Director-General of the CYPS.
15․	The Director-General is prohibited from disclosing that information and those documents
to any person other than in accordance with the provisions of the CYP Act. Indeed,
divulging the sought-after material other than in accordance with the CYP Act is an
offence punishable by a maximum of 50 penalty units, imprisonment for six months or
both: s 846(2) of the CYP Act (the offence provision).
16․	Kelley Jeffries and Sabrina Cooke have commenced proceedings against the Australian
Capital Territory as being responsible for the alleged negligent acts or omissions of the
CYPS. In short, it is alleged that the CYPS should have done more to protect the children
from [redacted], and had it done so, Finn Cooke would not have died, both children would
have suffered lesser physical and mental injuries and Kelley Jeffries would not have
suffered psychiatric injury. Those issue will be determined when the substantive matter
is heard.
17․	For present purposes it need only be said that the two plaintiffs wish to have access to
the reports made to the CYPS concerning Sabrina and Finn Cooke and other information
and documents held by the CYPS in order to prosecute their case against the defendant.
18․	The plaintiffs have sought the material pursuant to s 68 of the Civil Law (Wrongs) Act
2002 (ACT). The defendant is content for the plaintiffs to have the sought-after material
subject to being allowed to do so under the terms of the CYP Act. Given that position I
do not need to decide whether the sought-after material could or should be provided
under s 68 of the Civil Law (Wrongs) Act, only how that might be done given the
provisions of the CYP Act.
19․	The first point to note is that although the Territory is the defendant and is being sued as
being responsible for the alleged acts and omissions of the Director-General, the
Territory is not the Director-General and is not the holder of the sought-after material (or
an “information-holder” as defined in the CYP Act).
20․	The significance of that observation is that, as I read the CYP Act, the Director-General
is prohibited from divulging the sought-after material to the Territory or its legal advisors
(as well as the plaintiffs) in these proceedings, and the defendant has no power or
authority to divulge that information to the plaintiffs. I shall return to those matters later
in this judgment.

The legislation

21․	All subsequent references to statutory provisions will be to sections of the CYP Act
unless otherwise indicated.
22․	The structure of the CYP Act insofar as it concerns this case is as follows.
23․	Chapter 25 of the CYP Act is headed “Information secrecy and sharing”.
24․	The CYP Act, amongst other things, protects “protected information” and “sensitive
information”.
25․	Protected information is defined in s 844 as follows:

844 What is protected information?

(1) In this Act:

protected information means information about a person that is disclosed to, or obtained by, an information holder because the information holder is, or has been, an information holder.

(2) Without limiting subsection (1), protected information includes sensitive
information.

26․ Sensitive information is defined in s 845 as follows:

845 What is sensitive information?

(1) For this Act:

sensitive information means any of the following:

(a)	care and protection report information;
(b)	care and protection appraisal information;
(c)	interstate care and protection information;
(d)	family group conference information;

(e) contravention report information;

(f) information prescribed by regulation.

(2) In this section:

care and protection appraisal information means information—

(a)	in a record of an appraisal; or
(b)	that would allow information in a record of an appraisal to be worked out; or
(c)	in a report (an incident report) to the public advocate or Aboriginal and Torres Strait Islander children and young people commissioner under section 507 (Public advocate etc to be told about action following appraisals); or
(d)	that would allow information in a record of an appraisal or incident report to be worked out.

care and protection report information means information—

(a)	in a child concern report; or
(b)	received by the director-general under section 360 or section 361; or
(c)	in a record that relates to—
(i) a notification under the Children’s Services Act 1986, section 103 (as

in force at any time); or

(ii) a report under the Children and Young People Act 1999, section 157A, section 158 or section 159 (as in force at any time); or

(iii)   any other information received by the director‑general under the

Children and Young People Act 1999 about the suspected abuse or neglect of a child or young person; or

(iv)   any information received about the suspected abuse or neglect of a child or young person at any time an ordinance was in force in relation to child welfare; or

(d)	that would allow information mentioned in paragraph (a), (b) or (c) to be worked out; or
(e)	that identifies a person as a person who gave the information mentioned in paragraph (a), (b) or (c); or
(f)	that would allow a person’s identity as a person who gave the information

mentioned in paragraph (a), (b) or (c) to be worked out.

contravention report information means information—

(a) in a confidential report made under section 876 (Confidential report of

contravention of Act); or

(b)	that would allow the information in a confidential report to be worked out; or
(c)	that identifies a person as a person who made a confidential report; or
(d)	that would allow a person’s identity as a person who made a confidential

report to be worked out.

family group conference information means information—

(a)	about anything said or done to facilitate, or anything said or done at, a family group conference arranged under section 80 (2); or
(b)	information in a family group conference agreement, or in a family group conference outcome report, that relates to a family group conference arranged under section 80 (2); or
(c)	information that would allow information mentioned in paragraph (a) or (b) to be worked out.

interstate care and protection information means information—

(a) in a report (an interstate care and protection report) made under a

provision of a law of a State corresponding (or substantially corresponding) to section 354 (Voluntary reporting of abuse and neglect), section 356

(Offence—mandatory reporting of abuse) or section 362 (Prenatal reporting—anticipated abuse and neglect), that is provided to the

director-general under a section corresponding (or substantially

corresponding) to—

(i) section 852 (Director‑general—giving information to person under

corresponding provisions); or

(ii)     section 861 (Information sharing entity—giving safety and wellbeing

information to director‑general); or

(b)	that would allow the information in an interstate care and protection report to be worked out; or
(c)	that identifies a person as a person who made an interstate care and

protection report; or

(d) that would allow a person’s identity as a person who made an interstate

care and protection report to be worked out.

27․	Thus, under the CYP Act, all sensitive information is protected information, but not all
protected information is sensitive information. The distinction is important when one
comes to the exceptions to the offence provision and therefore how access to that
information may be obtained.

28․ As mentioned in s 844, protected information means information about a person

disclosed to or obtained by an “information holder”. An “information holder” is defined in

s 843 as follows:

843 Who is an information holder?

In this chapter:

information holder means a person who—

(a)

is or has been—

(i)	the director‑general; or
(ii)	the public advocate; or
(iii)	the Aboriginal and Torres Strait Islander children and young people commissioner; or

(iv) an official visitor; or

(v)	a researcher for an approved research project; or
(vi)	someone else exercising a function, or purporting to exercise a function, under this Act (other than a judge or magistrate); or

(vii) someone else engaged in the administration of this Act; or

(b) has been given information under this Act by a person mentioned in

paragraph (a).

29․	As one can see from s 843, the defendant is not included (by name) in the definition of
“information holder”.
30․	The Director-General is expressly referred to in s 843 as is anyone exercising or
purporting to exercise a function under the CYP Act, or someone else engaged in the
administration of the CYP Act. I shall return to that definition and its consequences later
in this judgment but suffice to say for present purposes that, in my view, someone
exercising or purporting to exercise a function under the CYP Act, or someone else
engaged in the administration of the CYP Act, would include the Director-General’s staff
and any legal advisors retained by the Director-General for the purposes of an
application for access to the sought-after material under s 866.
31․	As mentioned earlier, it is an offence to disclose protected information (which includes
sensitive information).
32․	Sensitive information (about a person) may not be disclosed even with the person’s
consent: s 849.
33․	There are a number of exceptions to the offence provision.
34․	First, protected information that is not sensitive information may be divulged with the
person’s consent: s 849.
35․	Second, s 848(2) provides an exception to the offence provision if the information is not
sensitive information and the information is divulged under another Territory law or in the
exercise of a function, by an information holder, under another Territory law.
36․	“Territory law” is not defined in the CYP Act but is defined in the Legislation Act 2001
(ACT). In the Dictionary to the Legislation Act the following appears:

territory law—see law, of the Territory.

37․ Earlier in the Dictionary the following appears:

law, of the Territory, means—

(a) an Act; or

(b) a subordinate law; or

(c) any other statutory instrument of a legislative nature; or

(d) the common law.

38․	Potentially relevant Territory laws would seem to include the Court’s authority to compel
production of documents by the issuing of subpoenas under rules such as r 6601 of the
Court Procedures Rules 2006 (ACT). However, the exception to the offence provision
provided by s 848(2) does not, in terms, apply in relation to sensitive information. That is, production of documents pursuant to a subpoena for production of sensitive
information would not seem to be an exception, under s 848(2), to the offence provision.
39․	However, s 865 (set out further below) provides that an information holder must give
protected information or documents containing protected information if required to do so
for the CYP Act or another Territory law. This would seem to authorise the production of
documents containing protected information to the Court if subpoenaed to do so. Of
course, access to those documents is a different matter and will be considered further
below.
40․	Third, and relevantly to this case, s 847(2) says that the offence provision does not apply
to the divulging of protected information if the information is divulged under the CYP Act
or is divulged in the exercise of a function, as an information holder, under the CYP Act.
41․	The “Note” that follows s 847(2) says:

Note Protected information may be given to people under various provisions of this Act, including the following:

s 497 (Annual review report—must be given to certain people);

pt 25.3 (Sharing protected information);

pt 25.4 (Courts and investigative entities).

42․	Part 25.3 of the CYP Act is headed “Sharing protected information”, and Part 25.4 is
headed “Courts and investigative entities”. It is the latter which is the relevant Part for
this judgment.
43․	Part 25.4 contains the following provisions.
44․	Section 864 says:

864 Definitions—pt 25.4

In this part:

court includes a tribunal.

produce includes allow access to.

45․ Section 865 says:

865 Giving protected information to court or investigative entity

(1) An information holder must give protected information to a court or investigative
entity if required to do so for this Act or another territory law.

(2) An information holder must produce a document containing protected

information to a court or investigative entity if required to do so for this Act or
another territory law.

(3) An information holder may give protected information to a court or investigative
entity if authorised to do so by this Act or another territory law.

(4) An information holder may produce a document containing protected

information to a court or investigative entity if authorised to do so by this Act or

another territory law.

(5) In this section:

court includes a court of the Commonwealth, a State or another Territory.

46․ Section 866, the centrally relevant section to this application says:

866 Court may order sensitive information to be given or produced

(1)

A court may, in any proceeding, order an information holder to—

(a)	give sensitive information to the court; or
(b)	produce a document containing sensitive information to the court.

(2)

However, the court must not allow information given or produced to it under

subsection (1) to be given to the parties to the proceeding unless satisfied that—

(a)	the information is materially relevant to the proceeding; and
(b)	if the information is about a child or young person—the best interests of

the child or young person are protected.

(3) In making a decision under subsection (2), the court must consider the

desirability of protecting the identity of a person who made a child concern

report, confidential report or interstate care and protection report.

(4) To enable the court to make a decision under subsection (2),

the court must allow the information holder to be heard in relation to its

disclosure to the parties.

(5) In making a decision under subsection (2), the court must deal with the

information given or produced under subsection (3) in a way that ensures the

information is not divulged or produced to anyone else.

(6)	In particular, the court must ensure that no copies of the information can be made without leave of the court.
(7)	If the court decides not to allow a document produced to it under subsection (1) (b) to be given to the parties, the court must return the document to the information holder.

47․	A number of observations can be made about s 866.
48․	First, s 866(1) provides that a Court may order an information holder to give the sought-
after material to the Court (but not to the parties).
49․	Second, s 866(2) provides that a Court “must not” allow the sought-after material given
to the Court to be given to the parties unless both of two conditions are satisfied: the
sought-after material is “materially relevant” to the proceedings, and, if the sought-after
material is about a child (defined in s 11 as a person under 12 years old) or a young
person (defined in s 12 as person older than 12 years old but not yet an adult) the “best
interests of the child or young person are protected”.
50․	Third, s 866(3) provides that the Court “must consider” the desirability of protecting the
identity of persons who made certain reports.
51․	Fourth, s 866(4) provides that to enable the Court to make a decision under s 866(2),
the information holder (in this case being the Director-General) must be heard. There is
no provision allowing for the parties to be heard. That would be an unusual position for
the legislation to adopt but for the provision next considered.
52․	Fifth, s 866(5) provides that in making a decision under s 866(2) the Court must deal with
the sought-after material (produced to it) in a way that ensures the sought-after material
is not divulged or produced “to anyone else”.
53․	In my view the consequences flowing from the terms of s 866 in this case are these.
54․	First, the offence provision does not apply where protected information is divulged under
the CYP Act. That would include complying with an order of the Court under s 865 or
866 to give the sought-after material to the Court.
55․	Second, if the Director-General has his or her staff or legal advisors (retained for this
purpose) give the sought-after material to the Court, then they would be doing so, in my
view, as people exercising or purporting to exercise a function under the CYP Act, or as
people engaged in the administration of the CYP Act. As such, those staff or legal
advisors would fall within the definition of “information holder” in s 843.
56․	I note that the Public Sector Management (Children and Young People) Delegation 2022
(No 1) does not contain any delegation by the Director-General of any of his or her
functions under either ss 865 or 866 of the CYP Act.
57․	Third, in deciding whether to give the sought-after material produced to the Court to the
parties to the proceedings under s 866(2) the Court must deal with the information in a
way that ensures that information is not divulged to “anyone else”.
58․	That “anyone else” must include the parties to the proceedings, and their legal advisors,
given the breadth of that expression, the limited exceptions to the offence provision
described earlier in this judgment and the plain purpose of the provisions to which I have
already referred (when read textually and contextually) which is to be highly protective
of the secrecy of the sought-after material.
59․	Whilst it is highly unusual to exclude the parties from participating (at least fully) in an
interlocutory process which might have ramifications to the conduct of a final hearing and
judgment, it is not for the Court to read words into s 866 because the Court may consider
it in some way unfair. There are limited circumstances in which a court is justified in reading words into a statute, and those circumstances do not exist in this case: Taylor v
The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [22]-[25].
60․	Parliament clearly had the parties in its contemplation because they are mentioned in ss
866(2), (4) and (7), but no mention of the parties is made in s 866(5). That can only have
been deliberate. Further, there already exist a number of exceptions to the general rule
that all parties should have access to all information before a Court. They are described
below. Accordingly, exclusion of the parties is not a completely novel situation.
61․	Fourth, by a combination of the second and third matters referred to immediately above,
the Director-General could not (or should not) retain the Territory’s legal advisors to give
the sought-after material to the Court. That is because the divulging of the sought-after
material to them would be to divulge the sought-after material to a party to the proceeding
without there being an order to that effect having been made by the Court.
62․	Of course, I am not speaking of the mere mechanical act of physically bringing the
sought-after material to the Court, which could be undertaken by the defendant’s legal
advisors if the sought-after material was kept in some form of sealed envelope or other
sealed container. But there is usually more to production to the Court than that mere
mechanical act as shall shortly be addressed.
63․	Those matters give rise to the question how any application by the parties under s 866(2)
would be conducted.
64․	The Court is practised in dealing with information produced by Party A that Party A does
not wish to be divulged to Party B. One example is when an application is made to the
Court to approve a settlement in proceedings involving an infant. In such cases it is usual
for the plaintiff (Party A) to provide to the Court on a confidential basis (that is, not to be
disclosed to Party B) the plaintiff’s counsel’s advice on the reasons why the settlement
should be approved.
65․	Another example is where a Party A claims legal professional privilege over documents
and the asserted privileged material is given to the Court, but not to Party B, for
inspection by the Court for the purpose of determining the question of privilege.
66․	In both circumstances the Court is practised in being able to ask certain but necessarily
limited questions of Party A in the presence of Party B about the confidential material.
These limited questions are sometimes asked in an informal coded way so that the
Court’s questions may be answered without divulging the contents of the confidential
material. Necessarily that ability to ask questions and receive appropriate answers is limited, but the nature of those matters is such that that limited ability is usually sufficient
to meet the exigencies which arose and gave rise to the questions.
67․	However, it seems to me that that approach is not suitable for an application under s
866.
68․	That is because it is most unlikely that any sensible questions could be asked of or
answered by the Director-General in relation to the matters specified in s 866(2) and
particularly those set out in s 866(2)(b), namely that the Court “must not” allow the
information to be given to the parties unless satisfied that the best interests of the child
or young person are protected.
69․	The approach adopted in infant settlement and privileged documents cases becomes
even more unsuitable when the protection of the child’s or young person’s best interests
has to be judged in the context of the Court having to be satisfied that the sought-after
material is materially relevant to the proceedings.
70․	Earlier in the application when the parties were making their submissions, and at a time
when I incorrectly held the view that the defendant could appear on the foreshadowed s
866 application, I raised with the parties the possibility of the plaintiffs retaining
independent counsel who could be retained solely for the purpose of the s 866
application and would undertake to the Court not to divulge any information gained to
anyone else including the plaintiffs and their legal advisors.
71․	However, on further study of the CYP Act it seems to me that that possibility is prohibited
by the plain terms of s 866(5) because that counsel would fall within the term “anyone
else” and thus the Court could not allow the information to be divulged to that counsel.
72․	In my view I do not think an independent counsel, nor the parties’ legal advisors, would
fall under the extended definition of “information holder” in s 843(a)(vi) or (vii) (as set out
above) as it does not seem to me that either would be “exercising a function” or being
engaged in the “administration” of the CYP Act.
73․	Therefore, it seems to me that in proceedings such as this the appropriate procedure to
adopt in seeking access to sought-after material is as follows.
74․	First, a party will file and serve an application in proceedings under r 6007 and will name
the Director-General as a respondent (r 6007 allows for the naming of persons against
whom relief is sought who are not parties to the proceedings). A subpoena could also be
used because of the terms of s 865, but given what must follow after the documents are
produced to the Court, I would think an application in proceeding would be the better
procedure to adopt.
75․	With that application will be filed any of the material referred to in r 6007(5) and which
contains evidence relevant to the matters set out in s 866(2).
76․	The application would seek orders under s 866 being:

(1)	an order for the Director-General to give specified sensitive information, or
specified documents containing sensitive information, or both, to the Court; and
(2)	an order that the produced information or documents or both be given to that
party or all active parties to the proceedings.

77․	That application would then proceed in two stages.
78․	The first stage would concern s 866(1) and deal with the giving of the sought-after
information to the Court.
79․	If the Director-General had no objection to that being done, and if it could be done in a
way that ensured that the sought-after information was not divulged to anyone else (see
s 866(5)), then that could be done in the presence of the parties.
80․	However, if that process could not be undertaken without divulging the sought-after
information (because, for example, there needed to be submissions made about them),
then the Court would be closed, and the parties (other than the Director-General, his/her
staff and legal advisors) would be excluded from Court whilst the matter of production
was determined.
81․	The second stage would concern s 866(2) and would take place once the sought-after
information was produced to the Court. At this second stage a determination would be
made by the Court under s 866(2) whether the sought-after information was materially
relevant to the proceedings and, if the sought-after information concerned a child or
young person, that the best interests of the child or young person were protected.
82․	It is difficult to see how those matters could be determined in the presence of the parties
without being in breach of s 866(5) because of the probable need for full and frank
discussion of various matters which would almost inevitably involve discussion of some
of the sensitive information. In those circumstances that determination would need to
take place in the absence of the parties and with the Court closed. As provided for in s
866(4), the Director-General would be entitled to be heard.
83․	Of course, the parties would be free to provide (in advance) written submissions on the
stage two matters if they desired and would be permitted to do so. Necessarily those
submissions would need to be provided in the absence of knowledge of the contents of
the sought-after information.
84․	Sometimes that may not be the case. For example, I have been told that in the present
case [redacted]. In such circumstances the submissions just mentioned may contain
some reference to protected or sensitive information, but the parties should ensure that
such submissions (and the information or documents they hold) are treated
confidentially.
85․	It is no small thing to exclude parties to the litigation from being heard on an issue
relevant to the proceedings. However, there are times when this is done, at least in
relation to one party, as I have indicated above in relation to infant settlements and
disputes over privilege.
86․	Nevertheless, the plain words of the legislation say that the sought-after material is not
to be divulged to “anyone else” until after the Court has heard from the Director-General
and is satisfied of the matters set out in s 866(2). Further, given the ability of the Court
to make non-publication orders, to close the Court when necessary, that parties and their
advisors are subject to implied undertakings of confidentiality and that the parties to
proceedings in which any s 866 application is likely to be made are most usually going
to be the child or young person concerned, their family members and the Director-
General, it seems to me that it is unlikely that the undemanding “materiality” test would
not be met, the best interests of the child or young person will be able to be adequately
protected and the information be able to be divulged.
87․	Another issue I will touch on briefly (without deciding) is the matters which are to be taken
into account in considering whether the Court would be satisfied that the best interests
of the child or young person were protected: s 866(2)(b).
88․	The expression “best interests” appears 126 times in in the CYP Act but is not defined.
Sections 8 and 9 say:

8 Best interests of children and young people paramount consideration

(1) In making a decision under this Act in relation to a particular child or young

person, the decision-maker must regard the best interests of the child or young

person as the paramount consideration.

(2) In making a decision under this Act otherwise than in relation to a particular

child or young person, the decision-maker must consider the best interests of

children and young people.

Note 1	For the criminal matters chapters (see s 91), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person, see s 94 (Youth justice principles).
Note 2	For the care and protection chapters (see s 336), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person (see s 349).

(3) To remove any doubt, a reference in any section of this Act to the best interests
of a child or young person does not limit this section.

9 Principles applying to Act

(1) In making a decision under this Act in relation to a child or young person, a

decision-maker must have regard to the following principles where relevant, except when it is, or would be, contrary to the best interests of a child or young person:

(a) the child’s or young person’s sense of racial, ethnic, religious, individual or

cultural identity should be preserved and enhanced;

(b) the child’s or young person’s education, training or lawful employment

should be encouraged and continued without unnecessary interruption;

(c) the child’s or young person’s age, maturity, developmental capacity, sex,

background and other relevant characteristics should be considered;

(d) delay in decision-making processes under the Act should be avoided

because delay is likely to prejudice the child’s or young person’s wellbeing.

Note	In addition to these general principles, the following principles also apply:
(a) for the care and protection chapters—care and protection principles (see s
350);
(b) for ch 20—childcare services principles (see s 730).

(2) A decision-maker exercising a function under this Act must, where practicable and appropriate, have qualifications, experience or skills suitable to apply the principles in subsection (1) in making decisions under the Act in relation to children and young people.

89․	However, s 349 provides that in the “care and protection chapters” of the CYP Act, in
deciding what is in the best interests of a child or young person, a decision-maker must
consider each of 12 specified matters, together with any other fact or circumstance the
decision-maker considers relevant.
90․	The “care and protection chapters” are defined in s 336 to be Chapters 10-19 inclusive.
Thus, Chapter 25 which contains the provisions to which I have referred, is not a “care
and protection chapter”. But s 866(2)(b) is not concerned with the best interests of the
child or young person per se, but only with whether those best interests are protected.
Therefore, it seems likely to me that, given that what is to be protected are the child’s or
young person’s best interests, those best interests are to be assessed against the
matters set out in s 349.
91․	In this case Kelley Jeffries is a plaintiff in her own right, and the litigation guardian of
Sabrina Cooke in the other (at least for a few more months until Sabrina Cooke reaches
her majority). That position may give rise to a conflict between Kelley Jeffries’ own
(legitimate) interests in pursuing her own case, and her duties as litigation guardian to
Sabrina Cooke. That issue would need to be considered.
92․	One feature of this case is that Finn Cooke is deceased and so it is difficult to see how
he has any interests to be protected under s 866(2)(b).
93․	I should note two other provisions for completeness.
94․	First, s 529L. It says:

529L Access to protected information—young person

(1)	This section applies if a young person who has left out-of-home care asks for
access to protected information about the young person that is held by—
(a) the director-general; or
(b) an approved kinship and foster care organisation; or
(c) a previous out-of-home carer for the young person.

(2) The director-general may, if satisfied on reasonable grounds that it is in the

young person’s best interests—

(a)	give the young person access, free of charge, to the protected information held by the director-general; and
(b)	direct the organisation or carer to give the young person access, free of charge, to the protected information held by the organisation or carer.

(3) A direction under subsection (2) (b) may be conditional.

(4) If the director-general gives an organisation or carer a direction,

the organisation or carer must comply with the direction.

(5) If the direction is subject to a condition about the access, the organisation or
carer must comply with the condition.

95․	As one can see, that section only applies if a young person has left out-of-home care
and asks for access to protected information about themselves. Initially I thought that
that section may have application in this case, but I was told from the Bar table, and
accept, that Sabrina Cooke has never been in out-of-home care and so could not be said
to have left that care. Accordingly, I do not consider s 529L has any role to play in this
application.
96․	Second, s 851. It says:

851 Minister or director‑general—giving information in best interests of child or

young person

(1)	The Minister or director-general may give someone protected information about a child or young person if the Minister or director-general considers that giving the information is in the best interests of the child or young person.
(2)	Before the Minister gives protected information under this section, the Minister must ask the director-general for advice about giving the information and consider any advice given by the director-general.
(3)	An information sharing entity may ask the director-general for information the director-general may give the information sharing entity under this section.

97․	Perhaps that section may be called in aid in a litigation context, although I would think it
unlikely given the narrow consideration that the giving of the information must be in the
best interests of the child or young person.

Conclusion

98․	The parties sought a number of orders on this application by consent, including orders
in relation to production of CYPS documents.
99․	I have made the orders consented to so far as I am able given the matters I have
addressed above.
100․	I decline to make the orders in relation to the CYPS documents at this stage given what
I have said above. For those orders one or more of the parties should file an application
in proceedings for production of and access to those documents in accordance with
these reasons, and that application will be dealt with in due course.
101․	I shall grant liberty to apply on three days notice.

Orders

102․ I make the following Orders:

(1)	Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991
(ACT), it is ordered, until further order, that the plaintiff in proceedings SC
162/2023 be referred to in the proceeding (including in any document to be
filed with the Court, and in any affidavit or statement to be relied upon in the
Court, save for the jurat of any affidavit required to be sworn) only by the
pseudonym “Kelley Jeffries”.
(2)	Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991
(ACT), it is ordered, until further order, that the plaintiff in proceedings SC
163/2023 be referred to in the proceeding (including in any document to be
filed with the Court, and in any affidavit or statement to be relied upon in the
Court, save for the jurat of any affidavit required to be sworn) only by the
pseudonym “Sabrina Cooke”.
(3)	Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991
(ACT), it is ordered, until further order, that the son of the plaintiff in
proceedings SC 162/2023 and the brother of the plaintiff in proceedings SC
163/2023 be referred to in the proceeding (including in any document to be
filed with the Court, and in any affidavit or statement to be relied upon in the Court, save for the jurat of any affidavit required to be sworn) only by the
pseudonym “Finn Cooke”.
(4)	Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991
(ACT), it is ordered, until further order, that the disclosure (by publication or
otherwise) of information or particulars that might enable the persons referred
to in Orders 1-3 above to be identified or that would reveal their identity, other
than by use of their pseudonyms, be prohibited save for:

(a) in any subpoena for production and/or attendance or notice for non-

party production, in which it is reasonably necessary to identify the

persons referred to in Orders 1-3 above by their true names;

(b) in communications between the legal representative for the parties, in

which it is reasonably necessary to identify the persons referred to in

Orders 1-3 above by their true names;

(c) in communications necessary for the conduct of the proceedings

between the legal representatives for the parties and any party,

witness or other person(s), in which it is reasonably necessary to

identify the persons referred to in Orders 1-3 above by their true

names, provided that:

(i)       all such communications are conducted on a strictly

confidential basis; and

(ii)      (a copy of these orders is provided to any witness or other

person(s) with whom such communications are conducted.

(5)	The parties have leave to file amended pleadings adopting the pseudonyms in
place of the names of the persons referred to in Orders 1-3 above.
(6)	The defendant to provide to the plaintiffs’ solicitors any documents that fall
within s 68(1) of the Civil Law Wrongs Act 2002 (ACT) that are neither
protected information under s 844 of the Children and Young People Act 2008
(ACT) nor sensitive information under s 845 of the Act, including the
documents referred to in paragraph 2 of the letter from the plaintiffs’ solicitors
dated 13 April 2023, which is annexure “HR2” to the affidavit of Ms Ross
sworn 7 July 2023, by 1 September 2023.
(7)	That, 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.
(8)	Liberty to apply on 3 days notice.

I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.

Associate:

Date: