R v A & B

[1999] NSWADT 15

CITATION:	R v A & B [1999] NSWADT 15
DIVISION:	Equal Opportunity
APPLICANT:	R
RESPONDENT:	A & B
FILE NUMBER:	46 of 1998
HEARING DATES:	03/24/1999
SUBMISSIONS CLOSED:	03/24/1999
DATE OF DECISION:	24 March 1999
BEFORE:	Judge H G Murrell SC - Deputy President
PRIMARY LEGISLATION:	Anti Discrimination Act 1977
APPLICATION:	Sex Discrimination - Employment - Sex discrimination in employment (First Respondent) Aiding and Abetting sex discrimination in employment (Second Respondent)
MATTER FOR DECISION:	Application for access to documents under summons
REPRESENTATION:	Applicant: In person Respondent: E Brus of Counsel instructed by Crown Solicitor's Office (First Respondent) No appearance (Second Respondent)
ORDERS:	1. Access granted

Determination on summonses issued by the first respondent to four health care professionals, that is Drs Knowlden, Ross and Empson and Ms Baker, a psychologist.

1 I sat on the Tribunal when it determined an unsuccessful s 111 application by the first respondent. At the time of determining the s 111 application, I disqualified myself and the members sitting on that Tribunal from sitting on the hearing of this matter.

2 In these proceedings, the principal allegation made by the complainant is that, on 20 March 1996, in the course of a group training exercise run by the second respondent on behalf of the first respondent, the complainant's sponsor, under a Commonwealth funded training program for the long-term unemployed, one employee of the first respondent anally penetrated the complainant and other employees of the first respondent sexually touched the complainant. It is alleged that the conduct extended over a period of twenty minutes and that during that time the complainant protested.

3 The first respondent denies that the incident occurred.

4 In support of her contention that the incident did occur and in support of her claim for damages, the complainant has filed and served the following medical evidence.


(1) Reports of Dr Sheila Knowlden dated 17 July 1997 and 9 November 1998. Dr Knowlden has been the complainant's general practitioner for fifteen years. In her first report Dr Knowlden asserts that the assault of 20 March 1996 was the second sexual assault suffered by the complainant.

(2) Dr Ross dated 15 July 1997. Dr Ross is a general practitioner. She is a colleague of Dr Knowlden. The only matter of substance in the report is a statement that the complainant "is an intelligent person with an honest gentle retiring nature".
(3) Reports of Dr Empson, a psychiatrist, dated 26 October 1997 and 25 October 1998. It is apparent from these documents that Dr Empson has seen the complainant several times and has seen her simply on a medico-legal basis in relation to the subject matter of these proceedings.

(4) A report of Ms Baker, psychologist, dated 18 September 1998. At the date of writing the report, Ms Baker had seen the complainant purely for medico-legal purposes in relation to the subject matter of these proceedings.


5 Following service of this material, the first respondent issued summonses to each of the four health care professionals. Each has produced material in response to the summons directed to him or her.

6 The first respondent has requested that the complainant undertake psychiatric assessment for medico-legal purposes associated with these proceedings, but the complainant has declined that invitation.

7 At the complainant's request I have not read the material produced in response to the summonses, other than the reports which have already been served and the documents identified by the complainant as the subject of legal advice privilege or litigation privilege. I have ruled in relation to those documents.

8 The complainant objects to the first respondent having access to material not otherwise privileged, relying on s 126B and/or s 126H of the Evidence Act 1995. Strictly speaking, the Evidence Act does not apply to proceedings before this Tribunal. First, this Tribunal is not bound by the rules of evidence. Second, this Tribunal is not a "Court" within the meaning of the Evidence Act. However, the first respondent concedes that, insofar as the Evidence Act contains provisions designed to protect people, it is appropriate that the Tribunal apply its provisions. I agree that that is a proper course.

9 Each of ss 126B and 126H refers to the adducing of "evidence". It has been held that such provisions derivatively apply to preliminary processes, such as the inspection of documents produced in answer to a summons. It is nevertheless worth noting that there is a distinction to be made between preliminary processes and the use of evidence in an open court or tribunal.

10 As s 126H is a more protective provision than s 126B, I will deal with that provision first. The material that has been produced in response to the summons is a "protected confidence" or "contents of a document recording a protected confidence" within the meaning of s 126H(1). Consequently, the evidence is not to be adduced or derivatively made available for inspection unless this Tribunal gives leave for that to occur.

11 In relation to s 126H(2) as required by s 126H(2) notice has been given to the persons principally affected by the application. However, I haven't seen all the documents and there is at least one person whom I recall having been the recipient of the information who was not one of the subpoenaed doctors. In other words, under s 126H(2) notice has to be given of the intention to adduce evidence and it would seem that there are people involved who do not know that this application is being made. However, as the rules of evidence do not apply, and this is no more than a technical matter in this case, I am not going to be deterred by the fact that all notices may not have been given as strictly required by 126H(2). It seems to me that the real person that needed to be heard in relation to this was the complainant, she has exercise that entitlement to be heard, and the rules of evidence do not apply strictly in this Tribunal. Consequently, it is not necessary to delay the consideration of this matter in order to strictly comply with s 126H(2).

12 In determining whether to grant leave under s 126H(1), I am required to consider the particular provisions of s 126H(3), and of course any other matter which I consider to be relevant to the issue. Insofar as the material produced concerns either the alleged sexual assault in question, i.e. the alleged assault of 20 March 1996, or any other sexual assault allegedly perpetrated against the complainant, those are matters of very great probative value as far as these proceedings are concerned. No other evidence of those matters would be available in the sense that the confidences made to the medical practitioners and other health care professionals would not be able to be sourced elsewhere except on an unreliable basis. The balancing exercise which I must undertake under s 126H(3)(c) in my view clearly weighs in favour of allowing the first respondent to have access to the material. As far as the other medical matters which would no doubt be canvassed in the material produced, clearly they would be of less direct relevance. Nevertheless, they would be of considerable relevance, it would be difficult to put sexual assault harm into context without the background of material indicating other medical conditions from which the complainant might suffer. Consequently, it is my view that applying the considerations in s 126H(3), leave ought to be granted under s 126H(1) for the first respondent to have access to the documents.

13 Section 126B imposes a different and in many respects more lenient test. I have considered the matters set out in s 126B(4). Under s 126B(4)(c) one of those matters is the nature and gravity of relevant offence, cause of action or defence and the nature of the subject matter of the proceedings. The allegations made in these proceedings are extremely serious and the material that has been produced on summons would no doubt go very much to the issues of whether the allegations can be substantiated as to what occurred on 20 March 1996 and also to the extent of any harm flowing from that incident. I have considered the other matters set out in s 126B(4). Having regard to those and other relevant matters, I decline to make a direction under s 126B(1).

14 The first respondent may have access to the material.