Powell v Australian Sports Commission (No 2)

[2023] ACTSC 278

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Powell v Australian Sports Commission (No 2)

Citation: 

[2023] ACTSC 278

Hearing Date: 

1 September 2023

Decision Date: 

5 October 2023

Before:

Baker J

Decision: 

See [22]

Catchwords: 

CIVIL PRACTICE AND PROCEDURES – Disclosure of protected confidences – Application for leave to inspect protected confidences for the purposes of the proceedings – application for leave to issue subpoenas to produce documents containing protected confidences already granted – protected confider neither consents nor objects to inspection – subpoenaed entity objects to production of documents – outcome of preliminary examination of protected confidences

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79A, 79D, 79H

Cases Cited: 

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Powell v Australian Sports Commission [2023] ACTSC 172

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)

Canberra Rape Crisis Centre (Subpoenaed entity)

Representation: 

Counsel

Mr Wallace-Panell (Plaintiff)

Mr Vane-Tempest ( Defendant)

Ms Stanford (Canberra Rape Crisis Centre) 

Solicitors

Shine Lawyers (Plaintiff)

Ashurst Australia (Defendant)

File Number:

SC 456 of 2022

BAKER J:      

Introduction

1․The defendant seeks an order granting it leave to inspect and use documents produced under subpoena which 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 who a sexual offence or family violence offence was, or is, alleged to have been committed.

2․The history to the present application is set out in my judgment in this matter dated 10 July 2023: Powell v Australian Sports Commission [2023] ACTSC 172 (“Powell (No 1)”). In brief, the plaintiff has commenced proceedings for damages against the defendant. She alleges that an employee of the defendant sexually and physically assaulted her on a number of occasions in the course of her employment with the defendant. The plaintiff’s claim for damages includes psychological harm, and for reimbursement of psychological treatment, both past and future.

3․In Powell (No 1), I granted the defendant leave to issue subpoenas to Fisher Family Practice, the University of Canberra Medical and Counselling Centre, the Canberra Rape Crisis Centre (CRCC) and the Domestic Violence Crisis Centre (DVCS) to produce the following documents:

All records (electronic and hardcopy) for Kayla Dee Powell (DOB 29 November 1998) including but not limited to clinical notes, correspondence concerning medical and/or counselling advice or treatment, referrals, reports, imaging, pathology results, treatment plans (medical or counselling).

4․In granting that leave, I was satisfied that there was an arguable case that the evidence in relation to which leave was sought would materially assist the defendant’s case (Powell (No 1) at [15]), noting that 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”: Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 at [22] quoting Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [40] (emphasis in original).

5․Subpoenas to each entity were lodged on 11 July 2023.

6․On 31 July 2023 the Fisher Family Practice, University of Canberra Medical and Counselling Centre, CRCC, and DVCS each produced materials in accordance with the subpoenas issued. The CRCC was the only subpoenaed entity that objected to access being granted to the documents produced on subpoena.

7․The proceedings came before me a second time on 1 September 2023 to consider whether parties should be granted access to the documents produced.

8․Special counsel for the plaintiff indicated that the plaintiff neither consented to, objected to the disclosure of those documents. Counsel advised the Court that this position was a “very carefully considered position”.

9․Ms Chrystina Stanford, CEO of the CRCC, also appeared at the hearing and made submissions in support of her objection to the disclosure of, or access to, any of documents produced by the CRCC. In her oral submissions, and in a letter to the Court dated 31 July 2023, Ms Stanford explained that the CRCC’s position is to act “protectively” of its vulnerable clients. Ms Stanford submitted that the production of otherwise confidential documents in legal proceedings can alienate persons from seeking assistance and therapeutic support in the future. Ms Stanford also explained that objection was taken because sexual assault counselling notes do not focus on a “linear recording of events” and instead revolve around impact and healing. She submitted that the foundation of the CRCC’s work – healing from sexual assault – is built on confidence and trust, and that any disclosure of protected confidences will erode this therapeutic relationship, which is essential to the recovery of victims of sexual assault.

Legislation

10․Provisions relating to the protection of counselling communications in the context of sexual and family violence offence proceedings are contained within Div 4.4.3 of the EMPA.

11․The court is required to conduct a preliminary examination of the protected confidence evidence, after which the court may grant leave for the disclosure of protected confidences. In a civil proceedings leave may be granted only if the court is satisfied that “the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence”: s 79H(1)(a) of the EMPA.

12․In making a decision under subsection (1)(a), the court must have regard to the following relevant non-exhaustive factors, pursuant to s 79H(3) of the EMPA:

(a)for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and

(b)the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and

(c)the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and

(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

(f)whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and

(g)whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and

(h)the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.

Consideration

13․I have examined each of the documents produced on subpoena. I am satisfied that the documents listed in Annexure A to this judgment record material which include disclosures which are capable of falling within the definition of a “protected confidence” within s 79A of the Act.

14․I have carefully considered each of the criteria set out in s 79H(3) of the EMPA with respect to each document produced by each subpoenaed entity. I am satisfied that the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidences contained within those documents. Accordingly, I consider that it is appropriate to grant leave to the parties to inspect and make use of “protected confidences” within the meaning of s 79A of the EMPA, which are contained within subpoenaed documents.

15․In granting that leave, I have taken into account the comprehensive submissions made by Ms Stanford on behalf of the CRCC. I fully recognise the importance of confidentiality and trust in the therapeutic relationships. These are interests which are at the heart of the regime created by Div 4.4.3 of the EMPA. However, the regime created by Div 4.4.3 of the EMPA is not one which protects absolute confidentiality. Rather, the regime balances different interests, in particular the broader interest of the maintenance of confidentiality of protected confidences against the specific interest of ensuring that that proceedings are conducted fairly.

16․That balance will frequently involve different considerations in civil cases as compared to criminal cases. As McCallum CJ held in Stanley at [29]:

The considerations in sub-ss 79H(3)(b) and (c),  interest in ensuring that victims receive effective treatment and the prospect that disclosure of protected confidences may dissuade victims from seeking counselling or other treatment or diminish the value of counselling or other treatment, are of less weight in the present case where, by commencing the action, the plaintiff has put in issue the causes of her present injuries and disabilities.

17․An important consideration in the present case is that the plaintiff does not oppose the grant of leave for access to be given to the parties, and that this position has been taken with the benefit of advice from special counsel.

18․As in Stanley, on my preliminary examination, the documents do not appear to harm the plaintiff’s case. Rather, the documents in large part appear to support the plaintiff’s claim. However, as was also the case in Stanley, this does not afford a proper reason to refuse access to the documents: “it is not necessary that the documents will advance [the defendant’s] case; only that having the documents will assist [the defendant] in making decisions about the case”: Stanley at [30] (emphasis in original).

19․The leave that I will grant does not at this stage extend to use of the documents in the Court proceedings. The use of the documents in any hearing will be an issue for the trial judge. Further protections may be considered by the trial judge to mitigate the loss of privacy, including receipt of the documents in a closed court.

20․I propose to grant first access to the plaintiff until 5:00pm on Monday 9 October 2023. The granting of first access will provide an extra layer of protection to the plaintiff.  

21․There is an implied undertaking in respect of all subpoenaed documents that they will only be used for the purpose of the relevant proceedings and not for any collateral purpose: Harman v Secretary of the State for the Home Department [1983] 1 AC 280 at 295. Accordingly, I do not consider it necessary to make any consequential order limiting the purpose for which the documents are copied or the persons to whom copies may be provided.

Orders

22․For those reasons the following orders are made:

(1)In respect of the following documents, leave is granted under s 79D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for any protected confidences contained within those documents to be disclosed, with first access to the plaintiff to inspect and copy until 5:00pm Monday 9 October 2023:

(a)Documents produced by the Fisher Family Practice in response to the subpoena lodged 11 July 2023;

(b)Documents produced by the University of Canberra Medical and Counselling Centre in response to the subpoena lodged 11 July 2023;

(c)Documents produced by the Canberra Rape Crisis Centre (CRCC) in response to the subpoena lodged 11 July 2023; and

(d)Documents produced by the Domestic Violence Crisis Centre (DVCS) in response to the subpoena lodged 11 July 2023.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 5 October 2023

ANNEXURE A

Subpoenaed entity	Date	Document Description
Canberra Domestic Violence Crisis Service	12 July 2023 – 17 July 2023	Notes for Kayla Powell between 12/07/2023 and 17/07/2023
	1 January 2017 – 24 November 2022	Notes for Kayla Powell between 01/01/2017 and 24/11/2022
Canberra Rape Crisis Service	20 January 2021 – 1 March 2022	Kayla Powell Case Notes
University of Canberra Medical and Counselling Centre	21 November 1998 – 17 July 2023	Patient Subpoena Export – Miss Kayla Powell
	8 April 2021	Health Information Collection and Use Form
	7 April 2021	New Patient Registration Form
Fisher Family Practice	13 July 2023	Kayla Powell Complete Record
	N/A	Miss Kayla (Kayla) Powell Patient Information
	26 November 2014	New Patient Registration Form
	16 November 2021	Letter from Flex out Physiotherapy to Fisher Family Practice
	4 May 2020	Letter from Dr Robert Schmidli to Fisher Family Practice
	12 January 2022	Admission Notification from Calvary Hospital
	7 June 2023	Discharge Summary from Calvary Hospital
	12 July 2023	Subpoena from Ashurst Australia
	7 March 2023	Admission Notification from Calvary Hospital
	15 December 2021	Letter from QScan to Fisher Family Practice
	21 December 2021	ACT Pathology Report
	27 January 2022	Discharge Summary from Calvary Hospital Emergency Department
	7 January 2020	World Para Athletics Medical Diagnostic Form
	7 March 2023	Discharge Summary from Calvary Hospital Emergency Department
	7 December 2020	Letter from Dr Veronica Preda to Fisher Family Practice
	12 January 2022	Discharge Summary from Calvary Hospital Emergency Department
	3 October 2017	World Para Athletics Medical Diagnostic Form
	17 April 2021	Discharge Summary from Calvary Hospital Emergency Department
	21 December 2021	Discharge Summary from Calvary Hospital
	8 March 2023	Admission Notification from Centenery Hospital for Women and Children
	15 December 2021	Discharge Summary from Calvary Hospital Emergency Department
	7 June 2016	Access Canberra Driver Licence Medica
	2 January 2023	Discharge Summary from Gold Coast University Hospital Emergency Department
	6 February 2023	Ultrasound Report from Canberra Fetal Assessment Centre
	26 November 2014	Request to Meadows Medical Centre for patient records
	14 December 2022	Discharge Summaries from Calvary Hospital Emergency Department
	23 May 2023	Discharge Summaries from Calvary Hospital
	3 May 2021	Discharge Summary from Calvary Hospital Emergency Department
	6 April 2021	Discharge Summary from Calvary Hospital Emergency Department
	4 June 2023	Admission Notification from Calvary Hospital
	21 December 2021	Admission Notification from Calvary Hospital
	12 January 2022	Discharge Summary from Calvary Hospital Emergency Department
	8 March 2023	Discharge Summary from Calvary Hospital
	6 August 2015	Letter from Dr Raymond J Mullins to Fisher Family Practice
	5 April 2021	Discharge Summary from Calvary Hospital Emergency Department
	2 May 2023	Discharge Summary from Calvary Hospital
	4 June 2023	Discharge Summary from Calvary Hospital
	28 November 2014	Health Summary from Meadows Medical Centre
	14 March 2014	Brain MRI Report
	14 December 2022	Discharge Summary from Calvary Hospital
	31 December 2021	Early Pregnancy Assessment Unit Discharge Letter
	8 March 2023	Admission Notification from Centenery Hospital for Women and Children
	5 May 2015	Referral from Fisher Family Practice to Dr Raymond Mullins
	16 December 2021	Referral from Fisher Family Practice to Early Pregnancy Assessment, The Canberra Hospital
	17 June 2015	Medical Certificate
	18 June 2015	Medical Certificate
	5 July 2023	Medical Certificate
	15 December 2020	Medical Report by Dr Lucia Wong
	14 July 2020	Referral from Fisher Family Practice to Dr Veronica Preda
	6 January 2023	Maternity options Form
	17 June 2015	Referral from Fisher Family Practice to Dr Ben Harkness
	28 April 2020	Referral from Fisher Family Practice to Dr Robert Schmidli
	15 December 2020	Medical Report by Dr Lucia Wong
	11 August 2015	Medical Certificate
	17 June 2015	GP MENTAL HEALTH CARE PLAN
	17 June 2015	Letter from Fisher Family Practice to ACT Assistance Animal Accreditation Team, Access Canberra
	15 December 2020	Referral from Fisher Family Practice to Dr Justin Pik
	15 December 2020	Medical Certificate
	3 February 2023	Second Trimester Ultrasound Report from Canberra Fetal Assessment Centre
	4 June 2023	ACT Pathology Report
	4 June 2023	ACT Pathology Report
	3 February 2016	Canberra Imaging Group Ultrasound Report
	21 July 2016	Canberra Imaging Group Ultrasound Report
	14 December 2022	Calvary Hospital Medical Imaging Result
2 May 2023	Calvary Hospital Medical Imaging Result