Skarbek v The Society of Jesus in Victoria and ors

In Skarbek v The Society of Jesus in Victoria and ors, the plaintiff, Skarbek, brought a claim against the defendants for alleged sexual offences committed at a school. The defendants sought leave to issue a subpoena under section 33C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) to compel disclosure of a treating psychologist’s file, despite substantial disclosure of psychologist’s reports and records to the defendants as part of a consensual pre-litigation claims process. The defendants argued that principles of waiver associated with legal professional privilege and medical privilege should apply to the confidential communications under section 33B of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).

The court considered whether the making of allegations in the proceeding amounted to conduct inconsistent with the maintenance of confidentiality. The court applied the principles from Mann v Carnell and DSE (Holdings) Pty Ltd v Intertan Inc and Anor, holding that there was no issue waiver by making allegations of fact in the proceeding. The court also considered whether the disclosure of a substantial proportion of the psychologist’s notes and reports was inconsistent with the maintenance of confidentiality in the remaining confidential communications in the psychologist’s file. The court found that the disclosure amounted to consent under section 32E(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) as the reports and records were provided as part of an agreed claims process.

The court further considered the requirements of section 32D of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), which required the court to determine whether the documents would have substantial probative value to a fact in issue in the proceeding. The court applied the threshold test from James Baker (a pseudonym) v R and found that the evidence could be obtained by any other means, and ordered limited disclosure of the psychologist’s file.