SAMPSON & HARTNETT

This matter concerned an objection by a hospital to a subpoena issued on behalf of the Respondent, seeking production of medical and counselling records of Ms Sampson, and records relating to mandatory notifications made to the Department of Family and Community Services. The proceedings were before Judge Scarlett.

The court was required to determine whether the hospital's objections to the production of these documents should be sustained. Specifically, the court considered whether the records were protected by professional confidential communications privilege under s 126B of the Evidence Act 1995 (NSW), whether their probative value was outweighed by the danger of unfair prejudice or undue waste of time under s 135 of the Evidence Act 1995 (Cth), and whether disclosure would be contrary to public policy by deterring future patients from seeking counselling. The court also considered the protection of the identity of informants under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

The court reasoned that the hospital's objection to the production of Ms Sampson's medical and counselling records was sustained, applying the principles of privilege and potential unfair prejudice. However, the objection to the production of records relating to mandatory notifications to the Department of Family and Community Services was dismissed, subject to the redaction of the informant's name and the Respondent providing an undertaking to use the documents solely for the proceedings and not disclose them without court permission. The objection to records concerning another child, Z (aka Sampson), was sustained. The court also ordered the transfer of the proceedings to the Family Court of Australia, as the matter was likely to exceed four days of hearing time.