Powell v Australian Sports Commission

[2023] ACTSC 172

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Powell v Australian Sports Commission

Citation:

[2023] ACTSC 172

Hearing Date:

7 July 2023

DecisionDate:

10 July 2023

Before:

Baker J

Decision:

See [17]

Catchwords:

CIVIL PRACTICE AND PROCEDURES – Application for leave to disclose protected confidences (subpoenas to produce documents) – s 79D of the Evidence (Miscellaneous Provisions) Act (ACT) – no dispute as to legitimate forensic purpose of subpoenas – application granted

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT)

Cases Cited:

R v Chute 14 ACTLR 140; [2019] ACTSC 197

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

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

Parties:

Kayla Dee Powell (Plaintiff)

Australian Sports Commission (Defendant)

Representation:

Counsel

Mr Wallace-Panell (Plaintiff)

Mr Vane-Tempest ( Defendant)

Solicitors

Shine Lawyers (Plaintiff)

Ashurst Australia (Defendant)

File Number:

SC 456 of 2022

BAKER J:

Introduction

1. By application dated 23 June 2023, the defendant seeks orders that leave be granted for subpoenas to be issued to the following entities:

(i)Fisher Family Practice

(ii)The University of Canberra Medical and Counselling Centre;

(iii)Canberra Rape Crisis Centre; and

(iv)Domestic Violence Crisis Service.

1. The documents which are sought under each subpoena include documents that may contain “protected confidences” within the meaning of s 79A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (“EMPA”), namely, counselling communications made by, to or about a person against whom a sexual offence was, or is alleged to have been, committed.

1. Section 79D of the EMPA requires that a protected confidence cannot be disclosed in proceedings without the grant of leave.  In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 at [17] – [25], McCallum CJ recently held that there are three stages at which leave to disclose must be sought under the EMPA. These are:

(i)Leave to compel production of protected confidences to the Court;

(ii)Leave to inspect and make use of protected confidences; and

(iii)Leave to adduce the evidence in the proceedings.

1. At this stage of the proceedings, the only leave sought is that referred to in (i) above, namely, leave to compel production of protected confidences to the Court.

1. The plaintiff, who is also the protected confider, does not oppose the grant of leave to issue any of the subpoenas listed in paragraph [1] above.

1. For the reasons outlined below, I am satisfied that it is appropriate to grant leave for the issue of each of these subpoenas.

Background

1. On 22 November 2022, the plaintiff commenced proceedings against the defendant in the Supreme Court of the ACT. In those proceedings, the plaintiff alleges that she was sexually and physically assaulted on four occasions by one of the defendant’s employees. The defendant denies these allegations.

1. A statement of particulars filed by the plaintiff states that the plaintiff has required, and will continue to require, psychological treatment. She has disclosed discoverable documents including a letter of support from Canberra Rape Crisis Centre, records produced by the Domestic Violence Crisis Service, and a Medicare Claim History Statement.  The latter document refers to the plaintiff having attended Fisher Family Practice and the University of Canberra Medicare and Counselling Centre.

The test

1. Section 79F of the EMPA provides:

Threshold test––legitimate forensic purpose

(1)    The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.

(2)    To establish a legitimate forensic purpose, the applicant must—

(a)      identify a legitimate forensic purpose for seeking the leave; and

(b)      satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding.

(3)    The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.

1. The requirement in s 79F(2)(b) that there be “an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding” is to be interpreted as if the reference to an “arguable case” is the equivalent of “a reasonable possibility in light of the known facts” and does not require, at this threshold stage, the establishment of the facts that provide the material assistance: R v Chute [2019] ACTSC 197; 14 ACTLR 140 at [19]; Stanley at [20].

1. Further, “a party may be materially assisted in its case by knowing what apparently relevant documents say, even if those documents may not ultimately materially advance that party’s case” (emphasis in original): Stanley at [22], citing Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [40] (Bell P, with whom McCallum J, as her Honour then was, agreed at [98]). As McCallum CJ observed in Stanley at [22]:

A party may be equally assisted by learning from documents produced on subpoena that the plaintiff’s claims appear to be entirely honest and consistent (so warranting settlement of a claim out of court) as by material that might be used to attack the plaintiff’s credit.  It is not compulsory to impugn the credit of a witness who claims to have been the victim of sexual assault or family violence.

Application

1. Each of the proposed subpoenas are addressed to a medical service provider who has been identified as having provided treatment to the plaintiff in connection with psychological injuries arising from the alleged sexual and physical assaults.

1. As in Stanley, there is no dispute in the present case that these subpoenas have a legitimate forensic purpose.

1. The defendant submits that the documents sought will be relevant to the Court’s determination of both liability and quantum. In particular, the defendant contends that it cannot test the veracity of the sexual assault allegations which are the subject of the proceedings, or assess the potential quantum of the claim, without access to the documents sought. I am satisfied that the defendant has identified a legitimate forensic purpose for seeking the leave (s 79F(2)(a) of the EMPA).

1. In the present case, as in Stanley, the defendant “may be materially assisted in its case by knowing what apparently relevant documents say, even if those documents may not ultimately materially advance that party’s case”. I am satisfied that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the defendant’s case in the proceedings. 

1. The above findings are sufficient for the grant of leave at this first stage: namely, to issue the subpoenas. I note that consideration of the matters listed in s 79H of the EMPA is only required at the next stage: namely whether, following the production of any documents pursuant to the subpoenas, leave should be granted to inspect and make use of the protected confidence.

Conclusion

1. I am satisfied that the leave sought in the defendant’s application dated 23 June 2023 should be granted. Accordingly, I make the following orders:

(a)Leave be given to require Fisher Family Practice to produce documents falling within the category of documents contained within the draft subpoena to Fisher Family Practice appearing at Exhibit ED-9 to the affidavit of Elisa D’Andrea affirmed on 22 June 2023 (Annexure A to these orders).

(b)Leave be given to require University of Canberra Medical and Counselling Centre to produce documents falling within the category of documents contained within the draft subpoena to University of Canberra Medical and Counselling Centre appearing at Exhibit ED-11 to the affidavit of Elisa D’Andrea affirmed on 22 June 2023 (Annexure B to these orders).

(c)Leave be given to require Canberra Rape Crisis Centre to produce documents falling within the category of documents contained within the draft subpoena to Canberra Rape Crisis Centre appearing at Exhibit ED-12 to the affidavit of Elisa D’Andrea affirmed on 22 June 2023 (Annexure C to these orders).

(d)Leave be given to require Domestic Violence Crisis Service to produce documents falling within the category of documents contained within the draft subpoena to Domestic Violence Crisis Service appearing at Exhibit ED-13 to the affidavit of Elisa D’Andrea affirmed on 22 June 2023 (Annexure D to these orders).

I certify that the preceding seventeen [17] paragraphs are a true copy of the Reasons for Judgment of Her Honour Justice Baker.

Associate:

Date: 10 July 2023