KR v BR
[2018] VSCA 159
•22 June 2018
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 consistent with post traumatic stress disorder (PTSD) symptoms. These included hypervigilance especially when alone, avoidant of outside spaces especially around unfamiliar people and nightmare and anxiety that would worsen if triggered by stimuli such as television content. [BR] battled with low self esteem and difficulty developing close relationships.
During sessions in March 2015 [BR] revealed her memory of being assaulted by a man known as [KR] at the Mt Eliza Ashram during her three year stay there that ended in 2010. [BR] has suffered from other traumatic events in the past, however it is reasonable to consider the alleged assault at the Ashram as reported by [BR] to be a contributing factor to her PTSD symptoms.
In more recent months in September 2015, there has been more marked onset of acute anxiety and mood symptoms which in my opinion is an exacerbation of the PTSD symptoms, but with a differential diagnosis of mild major depression or adjustment disorder with anxiety. [BR]’s mental state and deterioration in function was concerning enough that I commenced [BR] on an antidepressant and anti-anxiety medication called escitalopram. Pharmacotherapy was targeted to treat any underlying clinical anxiety and depressive symptoms as well as prevent deterioration into a more severe primary depressive or anxiety illness. As outlined in the paragraph above, I think it is reasonable to consider that the alleged assault at the Ashram, in particular beginning to remember, think and talk about the events of the alleged assault, contributed to this exacerbation.
Overall [BR]’s prognosis is reasonably positive given she has multiple strengths including high intelligence, likeability, and resilience. However, my impression is that she to some extent has experienced a delay and regression of her psychosocial development due to the assault, including loss of confidence and social isolation which affects her quality of life and social and occupational performance and opportunities. For example, the ability to meet people to develop friendships and intimate relationships, network and take opportunities to develop occupational contacts has been truncated.
On 30 January 2018, the second defendant’s solicitor issued a series of subpoenas to various medical practitioners and counsellors who have treated one or other of the five plaintiffs, including to Dr Robertson.
The subpoena directed to Dr Robertson required her to produce:
Your entire file relating to the plaintiff, including but not limited to:
(a) all handwritten and computer clinical notes;
(b) all radiology and investigation reports; and
(c) all reports and correspondences.
The subpoena required the delivery up of the documents to the Registrar of the County Court.
In accordance with the County Court Civil Procedure Rules 2008 (‘the County Court Rules),[2] the subpoena advised Dr Robertson of her right to object to production or inspection of the documents in issue.
[2]Rule 42A.07.
Objection by addressee to production or inspection
6.If you are a person required by this subpoena to produce documents, and you object to producing the documents or to their being inspected or copied by anyone or more of the plaintiffs to the proceeding, you must notify the Registrar in writing of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party at whose request this subpoena is issued is required to inform you of the time and place when your objection will be heard by the Court.
The County Court Rules further required the second defendant to serve a copy of the subpoena on all parties to the proceeding. The subpoena advised the plaintiff that she could object to inspection of the documents.[3]
[3]Rules 42A.07 and 42A.08.
Objection by party served with subpoena to inspection
7.If you are a party to the proceeding and have been served with a copy of this subpoena and you object to the documents being inspected or copied by another party to the proceeding, you must notify the Registrar of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party at whose request this subpoena is issued is required to inform you of the time and place when your objection will be heard by the court.
Objection by plaintiff to production of hospital or medical file or record
8.If you are the plaintiff in this proceeding and this subpoena seeks from another person the production of a hospital or medical file or record concerning you or your condition, you may, before taking objection, inspect or copy the file or record produced to the Registrar and, after such inspection or copying, notify any objection you may have to inspection or copying of that file or record by any other party, provided that you make your inspection or copying and notify your objection and the grounds of that objection, if any, in writing within seven days after the day specified in the subpoena for production.
The subpoena further advised both the plaintiff and Dr Robertson as follows:
Applications in relation to subpoena
15. You have the right to apply to the court —
(a)for an order setting aside the subpoena (or a part of it) or for relief in respect of the subpoena; and
(b)for an order with respect to any claim you may have for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena.
Following the issue and service of subpoenas requiring the production of various medical records relating to the five plaintiffs, an objection was received with respect to subpoenas addressed to South Eastern Centre Against Sexual Assault, on the grounds that the documents contained ‘confidential communications’ for the purposes of s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’).
Having formed the provisional view that leave may be necessary to issue a subpoena if the documents in issue were protected by the relevant statutory scheme, the solicitor for the second defendant then requested a directions hearing on each of the five related proceedings to address the question whether leave was required for the issue of subpoenas in respect of the medical records.
A directions hearing was held on 20 March 2018, at which after hearing submissions concerning the applicability of s 32C (including submissions made on behalf of the plaintiff and Dr Robertson) Judicial Registrar Gurry set aside a series of subpoenas including that directed to Dr Robertson. The Judicial Registrar also determined that the question of whether leave was required to re-issue the subpoenas should be determined by a judge of the County Court. It is the subsequent determination of that issue which has led to the current application for leave to appeal.
The Ruling of Judge Carmody
That question was determined by his Honour Judge Carmody on 2 May 2018.[4] His Honour also considered and determined the consequential question of whether if leave were required, it should be granted.
[4]See ruling at pages 2–22 of Transcript of Proceedings, BR, MP, ML, MN and FR v Shiva Yoga Inc & KR (Unreported, County Court of Victoria, Judge Carmody, 2 May 2018) (‘Ruling’).
In dealing with the relevant legal principles[5] his Honour first noted that the second defendant submitted each of the plaintiffs had waived confidentiality over the medical records in issue.[6] In the case of the plaintiff the waiver was said to be constituted by the service of the written report of Dr Robertson.
[5]In a section of his Ruling headed ‘The Law’. See Ruling 4–8.
[6]Ruling 4.
His Honour then noted that the plaintiff contended that the provisions of the Act relating to confidential communications must be complied with. He referred to the definition of ‘confidential communication’ and found that the communications between any and all of the plaintiffs and their respective medical practitioners and counsellors constituted confidential communications under the Act.
His Honour then addressed the statutory regime and held that the statutory provisions provided for a statutory process in dealing with subpoenas in cases such as those before him. In so holding (and having regard to the ruling as a whole) we take his Honour to have held that leave was required for the issue of the relevant subpoena.
His Honour further held that the statutory provisions override any common law privilege relating to the waiver of medical privilege in this case.
He then dealt with a series of matters in the related proceedings, in which the plaintiffs consented to the issue of subpoenas, before turning to the remaining subpoenas including that addressed to Dr Robertson in respect of the plaintiff.
The judge recorded that:
·Both the plaintiff and Dr Robertson were respectively represented by counsel before him.
·Dr Robertson had been the plaintiff’s treating psychiatrist since 2013 and the doctor/patient relationship was a continuing one.
·The plaintiff does not consent to Dr Robertson divulging her clinical notes to any party.
·The second defendant submitted that the plaintiff had waived any confidentiality between doctor and patient when she served a report prepared by Dr Robertson upon the second defendant’s solicitor.
·The basis of the claim to continuing confidentiality was set out in an affidavit of Dr Robertson.
I am informed by my solicitors that the second defendant is seeking leave of the court to issue a subpoena pursuant to section 32C of the Evidence (Miscellaneous Provisions) Act 1958 Victoria to compel the production of my entire file relating to the plaintiff.
My patient’s file contains details of confidential communications communicated to me by the plaintiff during our consultations.
Based upon matters disclosed to me by the plaintiff, as well as my own observations and knowledge of her clinical history, I hold serious concerns about the stress, shock, emotional and psychological harm that would be caused to the plaintiff if the information contained in my clinical records was produced or adduced to the second named defendant. In my professional opinion the release of my clinical records to the second defendant would cause her trauma, exacerbate her anxiety and sleep disturbances and would diminish her ability to function in everyday life.
·This evidence was not challenged by the second defendant.
·The potential harm to the plaintiff if the clinical records were to be released outweighs any public interest in having or assisting the second defendant to defend the claim for damages brought against him.[7]
·The second defendant had had the plaintiff examined by his own specialist medical practitioner Associate Professor Doherty, who had been provided with a copy of Dr Robertson’s opinion.
·Associate Professor Doherty would be able to give the second defendant a medical opinion relating to a series of issues relating to the plaintiff’s claim which arose from matters stated in Dr Robertson’s report.
·The subpoena directed to the production of Dr Robertson’s clinical notes was a ‘fishing exercise’.[8] The matters of controversy between the parties could be properly dealt with by cross-examining Dr Robertson or the plaintiff.
·The second defendant would be in possession of two expert opinions, one from Associate Professor Doherty and one from Dr Robertson and would be well equipped to defend any claim by the plaintiff against him.
[7]Ruling 10.
[8]Ruling 11.
His Honour then examined the effect of the statutory regime created by ss 32C and 32D of the Act.
The second defendant has to satisfy me on the balance of probabilities that:
1the clinical records will have substantial probative value to a fact in issue;
2other evidence of similar or greater probative value is not available; and
3the public interest in preserving confidentiality of confidential communications and the protected confider from harm is substantially outweighed by the public interest in admitting the production of the records.[9]
[9]Ruling 11–12.
The judge then concluded:
The clinical records may have probative value to a fact in issue but the report[s] of Dr Robertson and Professor Doherty will cover the same evidence. More importantly the public interest in preserving confidentiality and the plaintiff from further harm, as deposed by Dr Robertson, outweighs the perceived risk of the second named defendant not being able to properly defend the claim.
I do not accept that the second named defendant cannot properly defend the claim against him because he does not have access to Dr Robertson's clinical records. The public interest is in encouraging people alleging sexual assault to obtain counselling and professional medical help is very high, and has legislative support as set out in this division of the [Evidence (Miscellaneous Provisions) Act 1958]. The second defendant will be able to make a full defence of the claim by BR without access to those clinical records.[10]
[10]Ruling 12.
In consequence the judge refused the application for leave pursuant to s 32C to serve a subpoena on Dr Robertson in respect of clinical records relating to the plaintiff.[11]
[11]Ruling 12.
The proposed grounds of appeal
The second defendant now seeks leave to appeal the judge’s interlocutory decision on the following grounds:
1.The primary judge erred in the construction of Division 2A of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (Act).
2.The primary judge erred in holding that Division 2A of the Act required that leave pursuant to s 32C be granted before a subpoena could issue to Dr Robertson for her clinical file.
3.Alternatively to 2, if leave was required, the primary judge erred in:
(a)refusing leave to the [second defendant] to issue a subpoena on Dr Robertson for the production of her clinical records relating to the [plaintiff] without inspecting the records in order to:
i.determine what parts of the file recorded confidential communications; and
ii.inform himself about the information contained in records to determine whether the requirements of s 32D(1) of the Act were satisfied,
(b)failing to find that the clinical records would have substantial probative value to a fact in issue;
(c)failing to consider or give weight to relevant matters in determining whether the requirements of sub-ss (a)-(c) of s 32D(1) were met;
(d)holding that s 32D(1)(b) was not satisfied because the reports of Dr Robertson and Professor Doherty would cover the same evidence;
(e)failing to take into account s 32D(2)(f) of the Act for the purposes of s 32D(1)(c);
(f)assessing the likelihood, and the nature or extent, of the harm that would be caused to the [plaintiff] if protected evidence was produced without considering the terms on which inspection might be permitted.
The issues
As they were elaborated on the leave application, the proposed grounds for appeal give rise to four issues:
(a) Did the judge err in holding that leave was required to issue the subpoena?
(b) Did the judge err in holding that the second defendant could not rely on waiver to avoid the operation of s 32C?
(c) Did the judge err in his approach to the application of ss 32C(1) and (2)?
(d) Did the judge err in failing to take into account the capacity of ancillary orders under s 32F of the Act to alleviate potential harm to the plaintiff?
The statutory regime
Before turning to these issues it is necessary to say something in greater detail about the provisions of the Act.
Part II of the Act relates to witnesses. Division 2 of that Part relates to privileges, disabilities and obligations of witnesses. It includes s 28 relating to confessions to doctors.
Division 2A concerns confidential communications. That term is defined by s 32B(1) of the Act as follows:
(1) In this Division—
confidential communication means a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred;
It can be seen that the concept extends to communications with counsellors in addition to medical practitioners.
Division 2A was inserted by s 4 of the Evidence (Confidential Communications) Act 1998 (Vic) following a forum convened by the Victorian Community Council Against Violence to develop a legislative proposal for the purpose of protecting the counselling notes of sexual assault victims from being improperly used in sexual offence hearings.[12] As the second defendant acknowledged in submissions, the text of, and background to, the Evidence (Confidential Communications) Act 1998 (Vic) indicate that it was relevantly directed to remedying the mischief of sexual assault victims being deterred from reporting or giving full information to doctors or counsellors in the course of their treatment, because of uncertainty and fear about unwarranted access to their records being granted by courts.
[12]Victoria, Parliamentary Debates, Legislative Council, 21 April 1998, 503 (Ms Louise Asher, Minister for Small Business).
In turn, s 32C provides for the prima facie exclusion of evidence of confidential communications.
32C Exclusion of evidence of confidential communications
(1) In a legal proceeding—
(a)a party cannot seek to compel another party to produce a document containing a confidential communication;
(b)a document is not to be produced if it would disclose a confidential communication;
(c)evidence is not to be adduced if it would disclose—
(i)a confidential communication; or
(ii)the contents of a document recording a confidential communication—
unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention in accordance with subsection (2).
(2)A party seeking to compel the production of, or to produce or adduce, protected evidence must, not less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced, give notice in writing of their intention to—
(a)each other party to the proceeding; and
(b)in the case of a criminal proceeding, the informant; and
(c)the medical practitioner or counsellor, as the case requires, if not a party.
(3) The court may—
(a)fix a period of notice shorter than that referred to in subsection (2); or
(b)waive the requirement to give notice under subsection (2).
(4)On receipt of a notice under subsection (2)(b), the informant must give a copy of the notice to the protected confider within a reasonable time after its receipt.
(5)Whether or not notice has been given under subsection (2) or (4), the medical practitioner or counsellor, as the case requires, and the protected confider may, with the leave of the court, appear in the proceeding and make submissions.
(6)For the purpose of determining an application for leave under subsection (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave.
(7)Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding.
Some preliminary matters may be noted about this provision:
·It relates to legal proceedings generally including criminal proceedings and not simply civil proceedings;[13]
·It provides for sequential prohibitions upon the access to and use of confidential communications subject to leave of the Court;
·It requires notice to be given to interested parties of any application to obtain the evidence;
·It grants standing to an interested medical practitioner to address the question of leave;
·It provides that on a leave application the Court may order that a document be produced to it for the purposes of determining the application; and
·It makes provision prohibiting the admission of evidence excluded pursuant to s 32C(1).
[13]Cf s 28(2) of the Act.
Section 32D then makes provision governing the considerations relevant to the granting of leave pursuant to s 32C.
32D Restriction on granting leave
(1)A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that—
(a)the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and
(b)other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and
(c)the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.
(2)Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account—
(a)the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;
(b)the extent to which the protected evidence is necessary to allow the accused to make a full defence;
(c)the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;
(d)whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;
(e)whether the protected confider objects to the disclosure of the protected evidence;
(f)the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.
(3)A court may grant leave to compel the production of, or to produce or adduce, part of—
(a)a confidential communication; or
(b)the contents of a document recording a confidential communication—
and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.
(4)The court must state its reasons for giving or refusing to give leave under this section.
(5)If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.
It can be seen that subsection (1) requires that the Court be satisfied of three sequential preconditions before leave is granted.
The first requirement means that the Court must be satisfied that the evidence ‘will’ – not ‘may’ – have ‘substantial’ probative value to a fact in issue.
The second requirement means that the Court must be positively satisfied of a negative, namely that other evidence of similar or greater probative value is not available.
The third requirement makes clear that the statute is intended not only to recognise the individual rights of parties but to protect confidentiality of the proscribed class of evidence in the public interest.
Section 32AB sets out guiding principles which indicate some of the underlying social factors which give rise to this public interest.
32AB Guiding principles
It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly under-reported; and
(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
(d) offenders are commonly known to their victims; and
(e)sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
Despite the fact that this is not a proceeding which relates to a ‘charge for a sexual offence’ it is apparent the matters referred to are relevant to the notion of the public interest embodied in the subsequent provisions generally, and in particular, ss 32D(1)(c) and 32D(2)(c).
Section 32D(2) elaborates matters which the court must take into account without limiting regard to other relevant matters.
The specified matters relate respectively to the public interest in confidentiality of the material on the one hand, subsections 32D(2)(a), (c), (d) and (e), and on the other hand to the public interest in a fair trial of court proceedings — subsections 32D(b), and (f).
The balancing exercise which a Court must undertake may be regarded as broadly analogous to that required by s 130 of the Evidence Act 2008 in respect of documents which attract claims of public interest immunity.
Section 32E provides for limitations on the protection granted under the leave provisions. Section 32E(1) provides:
32E Limitations on privilege
(1)This Division does not prevent the production or adducing of evidence—
(a)with the consent of the protected confider or, if he or she is under 14 years of age, with the consent of any person whom the court regards as being an appropriate person to give that consent; or
(b)of information acquired by a registered medical practitioner by physical examination (including communications made during the examination) of the protected confider in relation to the commission or alleged commission of the sexual offence; or
(c)of a communication made, or the contents of a document prepared, for the purpose of a legal proceeding arising from the commission or alleged commission of the sexual offence; or
(d)of a communication made, or the contents of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(e)of a communication made if it is evidence of the commission of an offence of wilful and corrupt perjury.
The effect of s 32E(1)(a) is in issue in this proceeding.
It may also be noted that s 32E(1)(c) makes clear that Dr Robertson’s report is not itself caught by the statutory scheme.
Section 32F provides for ancillary orders available on the granting of leave.
32F Ancillary orders available on a granting of leave
Without limiting any action that the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of protected evidence, the court may—
(a)order that all or part of the evidence be heard in camera; or
(b)make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety or welfare of the protected confider or the registered medical practitioner or counsellor, as the case requires; or
(c)make such orders relating to disclosure of protected identity information as, in the opinion of the court, are necessary to protect the safety or welfare of the protected confider or the safety of the registered medical practitioner or counsellor, as the case requires.
In the present context, the second defendant contends that this section would enable an order to be made requiring production of any confidential communications to the second defendant’s legal advisers only and not to the second defendant.
Section 32G(1)(a) makes clear that the confidential communications provisions do not affect the application of s 28 of the Act.
Did the second defendant require leave to issue the subpoena?
In our view s 32C did require the second defendant to obtain leave to issue the subpoena directed to Dr Robertson. The question of statutory construction falls to be resolved by reference to the text, context and purpose of the provision.[14]
[14]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne).
First, while it is true, as the second defendant submits, that s 32C(1) commences with a conditional prohibition upon a party seeking to compel ‘another party’ to produce documents, the better view is that ‘party’ in subsection (1)(a) is used in the general sense of a person. If it is not given this general meaning s 32C(1)(a) will have little if any application to criminal proceedings and will not apply to civil proceedings when it is sought to address a subpoena to a medical practitioner or counsellor. Such a construction would be anomalous.
If we are wrong in this view however, the applicant must still confront s 32C(1)(b). This prohibits the production of documents disclosing confidential communications without leave. It thus prevents compliance with a subpoena without the leave of the Court. The issue of a subpoena without leave requiring production of documents of the relevant kind would be contrary to this prohibition, because it would, without more, cause a breach of the prohibition.
Four contextual considerations further support the view that leave is required.
First, the County Court Rules themselves contemplate that in some circumstances leave may be necessary to issue a subpoena.[15] There is nothing inherently odd in requiring leave for this procedural step.
[15]Rule 42.02.
Secondly, s 32C(6) makes clear that the Court may order that a document be produced to it for the purpose of determining an application for leave and that a subpoena is not necessary to bring the documents into Court.
Thirdly, in the absence of leave there will be a necessary conflict between the ordinary regime governing the return of subpoenas and the statutory regime with respect to confidential communications. Under the ordinary regime, the recipient of the subpoena will be required to produce the documents unless he or she objects on valid grounds such as privilege. Under s 32C, the onus is thrown upon the party seeking the production of the document to justify such production.
Fourthly, the statutory requirements for notice contained in s 32C(2),(3) and (4) tend to support the view that a procedure additional to the usual subpoena procedure is contemplated.
Fifthly, in Todd v The Queen,[16] Weinberg, Whelan and Priest JJA proceeded on the basis that leave was required to issue subpoenas relating to documents containing records of confidential communications made by a victim of sexual assault to medical practitioners and counsellors. If the Court of Appeal misapprehended the effect of the legislation, then given its ongoing significance, it might be expected that Parliament would have corrected that misapprehension. We do not believe that we should depart from their Honours approach unless it was plainly wrong and we do not think that it was.
[16][2016] VSCA 29.
Insofar as the purpose of the provisions is concerned, the threshold requirement for leave to issue a subpoena gives effect to the purpose of reassuring victims of sexual assault that no unwarranted access to their records will occur.
It follows in our view that the second defendant must fail with respect to the first issue.
Did the judge err in holding that the second defendant could not rely on waiver?
The second defendant submits that like s 28(2), the provisions of Division 2A of the Act create a privilege.[17] In turn, the second defendant submits that the protected confider may waive that privilege either expressly or impliedly.
[17]The second defendant referred to the following authorities with respect to s 28(2). Pacyna v Grima [1963] VR 421, 424–5, Elbourne v Troon Pty Ltd [1978] VR 171, 176; Andasteel Constructions Pty Ltd v Taylor [1964] VR 112, 114; Abondio v Women’s and Children’s Healthcare Network [2000] VSC 51; Ginnity v Prefsure Life Limited [2007] VSC 284 [11]–[14]. See also Fitzgerald v Munro [1998] VSC 30 [5]. Cf the discussions in Elliott v Tippett (2008) 20 VR 195, 200–1 [21]–[23] and White v Arbuthnot Sawmills Pty Ltd [2017] VSC 443 [74]–[95].
In our view, Division 2A creates a separate regime relating to confidential communications as that term is defined and the judge was correct to so conclude.
When the regime is considered as a whole, the plaintiff should not be held to have consented to the production of evidence in terms of s 32E(1) by reason of implied waiver of her right to rely upon the confidential communications provisions of the Act for the following reasons.[18]
[18]As to the notion of implied waiver see Mann v Carnell (1999) 201 CLR 1, 13 [29] and the summary of authorities by Derham AsJ in Matthews v SPI Electricity Pty Ltd [2015] VSC 33 [44]–[55].
First, s 32E(1) contemplates consent to ‘the production or producing of evidence’. Section 28(2) is concerned with the divulging of information without the consent of a party. In the present case, the plaintiff does not consent to the production of the evidence in issue. The plain words of the text do not readily embrace the notion of an implied waiver of confidentiality.
Secondly, the provision made with respect to persons under 14 years of age in s 32E(1)(a) does not sit comfortably with the notion that consent under that subsection extends to implied waiver because it contemplates that the Court will nominate the appropriate person to give consent.
Thirdly, if a document discloses confidential communications then it is for the Court to assess whether leave should be granted for its production and to do so ultimately by reference to competing considerations of the public interest. This fundamental notion does not inform s 28.
Fourthly, in addressing the mandatory considerations stipulated by s 32D, the Court must take into account a consideration which itself embraces implied waiver, namely that referred to in s 32D(2)(f):
The nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.
Fifthly, it is logically possible that other mandatory considerations specified in s 38D(2) may give rise to a situation where the public interest in preserving confidentiality is not ‘substantially outweighed’ by admitting into evidence, evidence of ‘substantial’ probative value despite an implied waiver with respect to the information in issue. Thus it may be that evidence discloses that a victim of sexual assault is of very high risk of self-harm or suicide if the confidential communication is disclosed. It may be that the provision of a document is unnecessary to allow a defendant to make a full defence either of a criminal or civil proceeding. It may be that the case is one of notoriety which may have a substantial general deterrent effect upon frank disclosure of like matters by the victims of sexual offences to their treaters, if it becomes known that the confidentiality of the document was not respected at a court hearing.
Sixthly, it is apparent that the purpose of Division 2A is to materially limit access to confidential communications and to create a presumption that they will not be produced for the purpose of legal proceedings unless that production is justified in all the circumstances of the case. Those circumstances include a series of specified matters but are not defined or avoided solely by reference to the prior conduct of the protected confider with respect to the confidentiality of the communications.
Accordingly, the answer to the second question is no.
We will answer the third and fourth questions together.
Did the judge err in his approach to the application of s 32C(1) and (2)
Did the judge err in failing to take into account the capacity of ancillary orders under s 32F of the Act to alleviate potential harm to the plaintiff?
The second defendant submits that the judge could not properly weigh up the matters provided for in s 32D(1)(a)–(c) without inspecting the documents in issue. We are not persuaded by this submission.[19] We accept the submissions of counsel for the plaintiff that in the absence of a report from Associate Professor Doherty and further resolution of the real evidentiary issues in the proceeding, it was open to conclude that it was premature to reach a final view as to whether confidential communications would have substantial probative value to a fact in issue in the proceeding. It was also open to conclude that it was premature to reach a final view whether evidence was of similar or greater probative value concerning matters to which the protected evidence relates was not available.
[19]While there may be cases where it is necessary for a judicial officer to examine the documents in issue (either to determine whether they in fact contain confidential communications within the meaning of s 32B(1), or in order to weigh the matters provided for in s 32D(1)(a)-(c)), no criticism could be levelled at the judge for not conducting such an examination in the present case – no submission having been made to the judge that he ought conduct any such examination.
The questions raised by s 32D(1)(a) and (b) are not necessarily resolved in the second defendant’s favour by the following propositions which he advances:
(i) the proceeding necessarily involves questions relating to whether the alleged assault occurred and the causation, nature and prognosis of the plaintiff’s psychiatric condition and requirement for medical treatment;
(ii) the report of Dr Robertson was the only medical evidence served by the plaintiff in the proceeding in support of her claim to have suffered psychiatric injury by reason of a sexual assault perpetrated by the second defendant; and
(iii) the report itself raised issues of causation and delay in reporting as well as issues going to quantum.
It follows that the judge was not bound to be persuaded of the initial preconditions set out in s 33D(1)(a) and (b). Once it is accepted that it was open to the judge to reach the conclusion that leave should be refused on this basis, it would be inappropriate for this Court to interfere with his interlocutory ruling.
For completeness however we would add the following with respect to the key submissions made by the parties with respect to ss 32D(1)(c) and 32D(2).
We accept the submission of the second defendant that an assessment of the likelihood and nature or extent of harm that would be caused to the protected confider if the protected evidence were produced[20] properly includes a consideration of the second defendant’s submission that access to the documents in issue be provided to his legal advisers alone and not the second defendant personally.[21]
[20]The Act s 32D(2)(a).
[21]See s 32F and Skarbek v The Society of Jesus in Victoria [2016] VSC 622 [47].
Conversely it was open to the judge to conclude that it was premature to make an assessment pursuant to s 32D(2)(b) of the extent to which the protected evidence was “necessary” to allow the second defendant to make a full defence.
Further, the judge was not bound to inspect the document before making a decision. Although once the evidentiary issues become better defined it might be necessary for he or she to do so.
We accept the submission of the second defendant that the question of waiver of confidentiality was relevant to the application of s 32D(2)(f).
We do not propose to go beyond the above observations bearing on the merits of the leave application, because it will be open to the second defendant to re-agitate the question of access to confidential communications after the delivery of the report of Associate Professor Doherty or at a later stage of the proceeding (including at trial or when Dr Robertson gives evidence).
Conclusion
For the above reasons we would refuse leave to appeal.
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