MM v Australian Capital Territory (No 3)
[2024] ACTSC 238
•24 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | MM v Australian Capital Territory (No 3) |
Citation: | [2024] ACTSC 238 |
Hearing Date: | 24 July 2024 |
Decision Date: | 24 July 2024 |
Before: | Elkaim AJ |
Decision: | See [18] |
Catchwords: | CIVIL PRACTICE AND PROCEDURE – Disclosure of protected confidences – Whether material in question is necessary for a fair trial – psychological damages only sought – treatment of psychological condition relevant |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) pt 4.4, div 4.4, ss 79A, 79H, 79I |
Cases Cited: | Stanley v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210 |
Parties: | MM ( Plaintiff) Australian Capital Territory ( Defendant) |
Representation: | Counsel L Beange ( Plaintiff) K Weir ( Defendant) |
| Solicitors Ken Cush & Associates ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 520 of 2021 |
ELKAIM AJ:
The defendant seeks the following order:
Following production of documents in response to the subpoenas referred to in order 3, and subject to the Court’s examination of the documents, the parties be given leave under section 79D(2) and 79H of the Evidence (Miscellaneous Provisions) Act 1991 to disclose in and for the purposes of this proceeding, the protected confidences contained in those documents.
The defendant’s entitlement to the order, or otherwise, arises under pt 4.4 (div 4.4.3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act).
The plaintiff opposes the making of the order. Following the hearing, the plaintiff made this written submission:
The Plaintiff also notes there is a small residual risk of disclosure through any reasons given in respect of this decision. The plaintiff accordingly does not require reasons and notes that reasons are not required by the legislation.
I am not sure of the defendant’s attitude to the submission, but I think it is appropriate that reasons be given, although I will endeavour to keep the reasons brief and ensure that nothing is said that might amount to a disclosure of any protected confidence.
In order to reach the stage of deciding upon disclosure, it was first of all necessary for me to inspect the documents produced under subpoena and identify the protected confidences as defined in s 79A of the Act.
Having carried out the inspection, I identified a number of documents and made them available to the plaintiff in order for the plaintiff to indicate her attitude to the access sought by the defendant. The documents which I thought qualified as protected confidences were included in a schedule provided to the plaintiff. This occurred on 12 July 2024, when I also indicated that I would hear any argument on disclosure today.
Some background is necessary. The plaintiff, as a young person, was subject to the care and control of the defendant over about three years. Within this period the plaintiff alleges that she was sexually abused by a person employed by the defendant. The alleged abuse was persistent and pernicious. If proved, it would amount to a massive assault upon a vulnerable person.
On 14 December 2021, the plaintiff commenced proceedings with the filing of an originating claim and a statement of claim. The plaintiff seeks damages arising from the injuries she says that she has suffered as a result of the abuse. These injuries are of an entirely psychological and psychiatric nature. The consequential damages extend to non-economic loss and economic loss.
In preparation for the eventual hearing of the matter, both the plaintiff and the defendant have retained experts to comment on the plaintiff’s alleged injuries. It is no secret that the plaintiff has revealed that the alleged sexual abuse by the defendant’s employee is not the only sexual abuse that she has had to endure. She plainly discloses other abuse in the statement of claim.
I should also mention here, that in this matter, Balla AJ conducted a similar investigation to that which I have undertaken and ultimately made certain orders. Her Honour however, marked her reasons as Not for Publication so that I will say no more about that decision.
I was referred to the decision of the Chief Justice in Stanley v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210 (Stanley). The Chief Justice’s decision was relied upon in Powell v Australian Sports Commission (No 2) [2023] ACTSC 278 (Powell), a decision of Baker J. It is notable that in both Stanley and Powell, the plaintiff did not oppose the disclosure of the documents, although in the latter case there was opposition from the counselling service that had produced the documents.
Before giving leave for the disclosure of the protective confidences, section 79H(1)(a) of the Act requires me to be satisfied that:
… the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence.
The Act stipulates a number of factors to which I must have regard before reaching the required level of satisfaction. In stating her opposition to the requested order, the plaintiff relied upon the following factors contained within s 79H(3):
(d)whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and
(e)the likelihood that disclosure of the protected confidence will affect the outcome of the case; and
…
(g)whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence.
In my view, the consideration that dominates my decision is the nature of the damages sought by the plaintiff. They entirely arise from psychological injury. The protected confidences relate to the treatment of her psychological condition. They must be relevant. This was not disputed by the plaintiff. The plaintiff said some matters had already been revealed and that both sides had the benefit of expert reports which examined the plaintiff’s allegations of injury. These reports took into account matters both in favour of and against the attribution of particular abuse to the damages suffered by the plaintiff.
In my view, the protected confidences are potentially an integral part of the assessment of the causes of the plaintiff’s suffering. I cannot see how a fair trial could be conducted without the disclosure of the protected confidences.
I do, however, think that the objections made by the plaintiff are real and arise from genuine concerns held by the plaintiff. However, I cannot elevate these concerns above the conducting of a fair trial, but I can impose conditions to try and ameliorate their effect. My power to do this is specifically included in s 79I of the Act. To this end I asked counsel for the plaintiff to provide a list of conditions in case I found in favour of the defendant’s application.
The defendant has not opposed the requested conditions. I intend to include the conditions as part of my orders. The plaintiff has also asked me to make general orders in relation to the material that has been produced under subpoena. Again, there is no opposition to these orders, and I will make them.
I make the following orders:
(1)Leave is granted to the defendant to have access to the documents identified as protected confidences and included in the list annexed to these orders and entitled Schedule of Protected Confidences.
(2)The leave granted in Order (1) is subject to the following conditions:
(a)Disclosure of the documents identified in the schedule provided by the court and the protected confidences contained therein (protected confidences material) is restricted to the plaintiff, the legal representatives of the parties and to any medicolegal expert engaged by the parties, except to the extent required to provide instructions or advice;
(b)Disclosure of any report prepared on the basis of the protected confidences material is restricted to the plaintiff, the legal representatives of the parties and to any medicolegal expert engaged by the parties, except to the extent required to provide instructions or advice;
(c)The evidence of the plaintiff, any medico-legal expert provided with the protected confidence material, and any person to whom the protected confidence was made be given in closed court.
(3)The Schedule is not to be published with these reasons.
(4)In relation to general access the following orders are made:
(a)First access to the plaintiff for 21 days.
(b)General access thereafter.
(c)Subject to orders (a) and (b) above, the parties have leave to uplift, inspect and copy any material on CD or USB on the proviso that such material is returned within 72 hours.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim Associate: Date: 24 July 2024 |
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