PH1 v Australian Capital Territory

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

PH1 v Australian Capital Territory

Citation: 

[2025] ACTSC 400

Hearing Date: 

29 August 2025

Decision Date: 

5 September 2025

Before:

Muller AJ

Decision: 

See [21]

Catchwords: 

CIVIL PRACTICE AND PROCEDURE – EVIDENCE – application for leave to disclose produced protected confidence evidence – mandatory considerations in granting leave – evidence inspected by Court – plaintiff consents to disclosure – leave granted

Legislation Cited:

Evidence (Miscellaneous Provisions)Act 1991 (ACT), Ch 4, Div 4.4.3, ss 79D, 79F, 79G, 79H, 79I

Cases Cited:

Smith (a pseudonym) v Australian Capital Territory [2025] ACTSC 345

Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157

R v Chute (No 5) [2019] ACTSC 52

Parties: 

PH1 ( Plaintiff)

Australian Capital Territory ( Defendant)

Representation: 

Counsel

K Nasser ( Plaintiff)

K Oleson ( Defendant)

Solicitors

Maliganis Edwards Johnson ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 418 of 2024

MULLER AJ:

Background

1․The plaintiff asserts that she suffered personal injury in the course of and as a consequence of the provision of medical services to her at the Canberra Hospital, operated by the defendant. The primary injuries are alleged to be physical in nature, but the plaintiff also asserts the suffering of a consequential psychological injury and associated disabilities.

2․Prior to the commencement of this proceeding, but during the pre-court phase of information exchange, the defendant utilised the authority contained in the personal injury claim notification to gain access to various health records of the plaintiff. None of the records procured in that phase identified any protected confidences, and proceedings were subsequently commenced by the plaintiff on 10 December 2024. Following the commencement of proceedings, notices for non-party production were issued to a number of additional health service providers, including This is General Practice (TIGP) and Evo Psychology Pty Limited (Evo). In due course, the health records, including the TIGP records and the Evo records, were provided to at least some of the medical experts tasked with giving expert opinions in the context of the plaintiff’s medical negligence claim. Expert opinions have now been obtained and served by each of the parties.

3․The application that is before the Court was filed in circumstances where the parties have been alerted to the recording within the treatment notes of TIGP and Evo of material that may comprise protected confidences within the meaning of Div 4.4.3 of Ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA). If the records do contain protected confidences within the meaning of that Act there is a requirement for leave before a party can take any steps to deal with them. Any provision of leave in this case will necessarily be granted on a retroactive basis.

4․The evidence before me does not include any explanation of the failure to identify the protected confidences material prior to the supply of the treatment records to the medical experts. I accept that the records produced in the pre-court phase contained no indication…