KR v BR

Case [2018] VSCA 159 22 June 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0065

BETWEEN

KR (a pseudonym)[1]	Applicant
and
BR (a pseudonym)	First Respondent
and
SHIVA SCHOOL INC (in liquidation)	Second Respondent

[1]The names of the Applicant and First Respondent have been anonymised in accordance with the way in which the proceeding is being dealt with in the County Court.

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JUDGES:	OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2018
DATE OF JUDGMENT:	22 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 159
JUDGMENT APPEALED FROM:	BR, MP, ML, MN and FR v Shiva Yoga Inc & KR (Unreported, County Court of Victoria, Judge Carmody, 2 May 2018)

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PRACTICE AND PROCEDURE – Application for leave to appeal – Interlocutory decision –Subpoenas – Whether leave required to issue subpoena directed to documents disclosing confidential communications to treating psychiatrist – Claim alleging sexual assault causing psychiatric harm – Leave required – Open to trial judge to form view leave not justified at this point in time – Evidence (Miscellaneous Provisions) Act 1965 (Vic) Div 2A, ss 32AB, 32B, 32C, 32D, 32E, 32F, 32G – Todd v The Queen [2016] VSCA 29 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F A Ryan with Ms F C Spencer	Galbally & O’Bryan
For the First Respondent	Mr I Fehring with Mr R Ternes	Sdrinis Legal
For Dr Robertson	Ms A Robertson with Mr J Buxton	Avant Law

OSBORN JA
BEACH JA:

Introduction

The first respondent to this application (‘the plaintiff’) is the plaintiff in a County Court claim for damages for personal injury. In that claim she alleges that the applicant (‘the second defendant’) sexually assaulted her in February 2010 during a period in which she attended an ashram at Mount Eliza.

The plaintiff further alleges that the second respondent (‘the first defendant’) which operated the ashram is vicariously liable for the second defendant’s acts by reason of the position of trust, control and power in which it placed the second defendant in respect of the plaintiff.

The particulars of negligence include an allegation that the first defendant failed to heed complaints that the second defendant sexually assaulted other persons who were resident at the ashram prior to February 2010.

In turn, four other plaintiffs (also represented by the plaintiff’s solicitors) have instituted claims for damages for personal injury in respect of injury suffered as a consequence of sexual assaults by the second defendant which are alleged to have occurred during periods when they were resident at the Ashram.

The plaintiff has filed and served an expert report from her treating psychiatrist, Dr Robertson, in respect of the harm she has suffered as a consequence of the alleged sexual assault.

That report relevantly stated:

I have been [BR]’s treating psychiatrist since 2013. [BR] is currently staying with her father and is on the disability support pension for acute lymphoblastic leukaemia diagnosed in 2010. Her presentation at time of initial review in August 2013 was…

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 KR v BR

Details

AGLC: KR (a pseudonym)[1] Applicant and BR (a pseudonym) First Respondent and SHIVA SCHOOL INC (in liquidation) Second Respondent [2018] VSCA 159
Case: [2018] VSCA 159
Decision Date: 22 June 2018

CaseChat Overview and Summary

The case of KR v BR involved an application for leave to appeal an interlocutory decision concerning subpoenas. The applicant, KR, sought leave to issue subpoenas directed to the documents that disclosed confidential communications between the respondent, BR, and her treating psychiatrist. The application arose out of a broader claim alleging sexual assault and resulting psychiatric harm. The Supreme Court of Victoria was tasked with determining whether leave was required to issue the subpoenas under the Evidence (Miscellaneous Provisions) Act 1965 (Vic).

The court had to decide whether leave was necessary to issue subpoenas directed to documents that contained confidential communications between a party and their treating psychiatrist. This required an examination of the statutory provisions concerning subpoenas for confidential documents, particularly those relating to psychiatric treatment under the Evidence (Miscellaneous Provisions) Act 1965 (Vic) Division 2A. The court considered whether the statutory scheme allowed for the issuance of subpoenas for such documents without prior leave, and if leave was required, whether it was justified in this case. The decision in Todd v The Queen [2016] VSCA 29 was also considered as it provided guidance on the application of these provisions.

The court held that leave was required to issue the subpoenas for the documents in question. The statutory framework under the Evidence (Miscellaneous Provisions) Act 1965 (Vic) required leave for subpoenas directed to confidential communications between a party and their psychiatrist. The court found that it was open to the trial judge to determine that leave was not justified at that point in time, given the sensitive nature of the documents and the stage of the proceedings. The application for leave to appeal was thus refused, as the court found no error in the trial judge's decision that leave was not justified at that time.

No orders were made as the application for leave to appeal was refused.

Orders