Slater (a pseudonym) v Unilodge Australia Pty Ltd (Ruling)
[2018] VCC 2072
•13 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No.
| REBECCA SLATER (a pseudonym) | Plaintiff |
| v | |
| UNILODGE AUSTRALIA PTY LTD (ABN 49 078 921 169) | Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2018 | |
DATE OF RULING: | 13 December 2018 | |
CASE MAY BE CITED AS: | Slater (a pseudonym) v Unilodge Australia Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2072 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application by plaintiff to set aside four subpoenas issued by the defendant on the grounds that the subpoenaed material contains “confidential communication” under s32B of the Evidence (Miscellaneous Provisions) Act 1958 (Vic)
Legislation Cited: Civil Procedure Act 2010 (Vic); Evidence (Miscellaneous Provisions) Act 1958 (Vic), s32B, s32C; Sentencing Act 1991 (Vic); Summary Offences Act 1966 (Vic), s41B
Cases Cited:KR (a Pseudonym) v BR (a Pseudonym) & Anor (in liquidation) [2018] VSCA 159; Parri (a pseudonym) v Victorian WorkCover Authority (Ruling) [2018] VCC 1904.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr O T Lesage | Maxiom Injury Lawyers |
| For the Defendant | Mr P G Hamilton | Wotton + Kearney |
HIS HONOUR:
1 This is an application by the plaintiff to set aside four subpoenas issued by the defendant on the grounds that the subpoenaed material contains “confidential communication” under s32B of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“the EMPA”). The plaintiff submits that leave has not been obtained to issue the subpoenas as required by s32C of the EMPA.
2 The four subpoenas issued on 10 August 2018 are addressed to:
(i) Dr Melanie Evans
(ii) Dr Michael Hagen
(iii) Dr Soroor Nouri of Varsity Lakes Family Practice; and
(iv) Orygen Youth Health.
3 A Generally Endorsed Writ was issued by the plaintiff on 19 July 2018. The Statement of Claim dated 14 September 2018 was filed on 17 September 2018.
4 Paragraph 4 of the Statement of Claim states:
“The Plaintiff suffered injury loss and damage at the premises on or about 21 July 2015 when she was sexually assaulted by Yongzhen Yu (‘the assailant’), and thereafter when the assailant returned to the premises (‘the aftermath’).
PARTICULARS OF THE SEXUAL ASSUALT / THE AFTERMATH
Without limiting the generality of the foregoing:
(a) The incident occurred on the sixth level female bathroom at approximately 10.30pm and involved a phone/camera being placed under a shower cubicle door to capture images of the Plaintiff as she showered;
(b) The assailant was evicted from the premises;
(c) The Plaintiff observed the assailant attend the premises on a number of occasions thereafter notwithstanding the eviction.
PARTICULARS OF INJURY
(a) Post-Traumatic Stress Disorder;
(b) Anxiety and depression.”
5 The application was heard on 2 November 2018 and counsel for the parties provided me with written submissions.
6 Section 32C of the EMPA is designed to exclude evidence of confidential communication. Without restating the Section, it requires the Court to grant leave to compel the production of a document which may contain confidential communication. The Section provides a procedure which must be applied by a party seeking to produce the information, and for the benefit of practitioners this is set out at paragraph 41 of the Common Law Division Practice Note (PNCLD2-2018) of 1 August 2018.
7 Section 32B of the EMPA is the definition section, and “sexual offence” is defined as:
“… an offence to which clause 1 of schedule 1 to the Sentencing Act 1991 applies.”
8 Schedule 1(1) of the Sentencing Act 1991 (Vic) provides a list of sexual offences. I was informed that the Victoria Police investigation into the incident did not give rise to any charges against the alleged assailant; however, the s32B definition of “confidential communication” does not require a party to have been charged with an offence for the communication to be considered as “confidential communication”. Section 32B says:
“confidential communication means a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.”
9 The plaintiff’s submission was that the alleged offending falls within the meaning of a “sexual offence” under Schedule 1(1) of the Sentencing Act 1991 (Vic).
10 The defendant’s submissions were that the alleged sexual assault or incident was not a sexual offence under that Section.
11 The defendant’s solicitor, Allison Laura Hunt, swore an affidavit on 2 November 2018 to which was annexed a copy of the records of Victoria police regarding the incident, exhibit ALH-1. Victoria Police considered whether the incident gave rise to an offence under s41B of the Summary Offences Act 1966 (Vic) for “visually capturing another person’s genital or anal region (upskirting)”.
12 The definition of “sexual offence” in s32B of the EMPA is very clear on which offences the section applies to. Having considered the offence which was the subject of Victoria Police Investigations, I am satisfied that the offence of upskirting is not a Schedule 1 offence. On that basis, the plaintiff’s application to set aside the subpoenas would fail.
13 However, this application has been complicated because of the disclosure by the plaintiff’s solicitors of material from the records of one of the addressees of the subpoena, Dr Melanie Evans. At exhibit ALH-4 and ALH-7 of the defendant solicitor’s affidavit were medical reports of Dr Melanie Evans dated 20 July 2016, 15 August 2016 and 12 July 2017, and her clinical records.
14 On reading this material, I identified two entries dated 14 November 2014 and 20 April 2016 which clearly fall within the definition of “confidential communication”. These entries refer to communication by the plaintiff to her treating medical practitioner, of an incident which would result in an offence under Schedule 1(1) of the Sentencing Act 1991 (Vic).
15 Neither of these entries were referred to in either written or oral submissions by counsel.
16 Because of this, I decided to:
(a) Write to the practitioners on 20 November 2018 advising them that I had identified the two entries at exhibit ALH-7 of the affidavit of Alison Laura Hunt and the clinical records of Dr Melanie Evans which appear to be in the nature of “confidential communication”. As neither counsel addressed me on those entries, I requested written submissions by 27 November 2018 on those entries in accordance with the application before the Court;
(b) Having identified these entries in the material, and as the subpoenaed material was before the Court, I elected, pursuant to s32C(6) of the EMPA, to inspect the material.
17 Having now inspected the subpoenaed material, I am satisfied that the only material which would fall in the category of “confidential communication” are those two entries of 14 November 2014 and 20 April 2016 in the records of Dr Melanie Evans.
18 I received the plaintiff’s counsel’s further written submission dated 24 November 2018 and the defendant’s dated 27 November 2018.
19 Therefore, as I have determined that the offence of upskirting is not an offence defined under Schedule 1(1) of the Sentencing Act 1991 (Vic), and as the subpoenaed material from Dr Michael Hagen, Dr Soroor Nouri and the Orygen Youth Health does not contain “confidential communication”, the application to set aside those subpoenas is refused.
20 However, as the material sought to be obtained from Dr Melanie Evans contains “confidential communication”, I must deal with the plaintiff’s application as required by s32C for that subpoena.
21 The relevant provisions of the EMPA were considered by the Court of Appeal in the decision of KR (a Pseudonym) v BR (a Pseudonym) & Anor (in liquidation) (“KR”).[1] It is of note that the Court of Appeal said, at paragraph [33], that:
“In turn, s 32C provides for the prima facie exclusion of evidence of confidential communications.”
[1][2018] VSCA 159 (“KR”)
22 In considering s32D(1) of the EMPA, the Court of Appeal said, at paragraph [36], that this subsection requires the Court to be satisfied of three sequential preconditions before leave is granted. It said, at paragraphs [37]-[39]:
“The first requirement means that the Court must be satisfied that the evidence ‘will’ — not ‘may’ — have ‘substantial’ probative value to a fact in issue.
The second requirement means that the Court must be positively satisfied of a negative, namely that other evidence of similar or greater probative value is not available.
The third requirement makes clear that the statute is intended not only to recognise the individual rights of parties but to protect confidentiality of the proscribed class of evidence in the public interest.”
23 The Court stated, at paragraph [40], that:
“Section 32AB sets out guiding principles which indicate some of the underlying social factors which give rise to this public interest.”
24 And at paragraph [42]:
“Section 32D(2) elaborates matters which the court must take into account without limiting regard to other relevant matters.”
25 I must now consider the three sequential preconditions in ss(32D)(1)(a)-(c) of the EMPA which were discussed by the Court of Appeal in KR.
26 The first is whether the evidence will have substantial probative value to a fact in issue. The entries relate to an historical biographical event. The entries are limited in detail save for reference to a third party and a sexual offence. The plaintiff at the time was a minor and the incident was approximately twelve years ago. From the medical evidence provided to me, the plaintiff reports a fear that as a result of the upskirting incident, she may have been a victim of a similar sexual assault as reported to Dr Melanie Evans. The medical evidence identifies that the plaintiff has a significant psychiatric condition. It would appear not contentious that this condition predated the incident on 21 July 2015. The issue of causation, particularly with reference to what the plaintiff says the incident has contributed to her current condition, is very much a relevant issue between the parties. Given that, it is reasonable to indicate that a reported history of having been the victim of the sexual offence to which the plaintiff reports that she was fearful would be committed on her from this incident, would be of substantial probative value.
27 The second is whether other evidence of similar or greater probative value is not available. I am not satisfied here, given the complexity of the plaintiff’s psychiatric condition and the material that is available regarding her pre and post-incident condition, that other evidence is not available. The plaintiff has in no way denied her pre-existing medical condition, and to medical examiners, has openly reported some of the difficulties she has experienced. The defendant has an opportunity to examine the plaintiff and I do not believe that the defendant is precluded from making a full defence on the non release of the material in respect to these two entries.
28 The third condition requires me to consider the individual rights of the parties and protect confidentiality of the prescribed classes of evidence in the public’s interest. Here, I note that the plaintiff objects to the release of the two entries. I have considered the matters I must take into account for the purpose of determining this precondition. I accept there would be substantial harm caused to the plaintiff by the release of the two entries. It is noted that the only reference to this historical sexual offence was to her treating psychiatrist, and in the context of numerous attendances with the psychiatrist. There is no other reference in the material to that sexual assault. In those circumstances, the release of the two entries would be contrary to the expectations of the plaintiff that those statements would be confidential and contrary to the intended purpose of the legislation.
29 The difficulty now is that the subpoena has been issued, the material has been identified by me as “confidential communication” and I am not satisfied that the three preconditions have been satisfied to release the material to the defendant.
30 In my Ruling of Parri (a pseudonym) v Victorian WorkCover Authority (Ruling)[2] (“Parri”), I considered a situation similar to this where a subpoena had been issued to produce material without leave but where the material contained confidential communication. I noted that there would be circumstances where parties would not have knowledge that the material to be subpoenaed may contain confidential communication. I considered that practical implications which arise, including issues which the Court and addressees will face.
[2][2018] VCC 1904
31 In Parri, I set out two matters which I considered would assist me in making my decision on how to proceed.
32 The first was that the EMPA itself provided a level of comfort to the parties that the material would not be made available to a party seeking to rely upon it without it first being considered by the Court, and the Court being satisfied that its release and use was not contrary to the EMPA itself.
33 The second was the provisions of the Civil Procedure Act 2010 (Vic) and the obligations to further the overarching purpose in making any order or giving any direction in a civil proceeding.
34 I said in Parri, at paragraph [46]:
“I am conscious of the amount of time that is spent by both Court staff and addressees responding to subpoenas to produce material. It would be a further burden on both the Court and the addressees if, after having produced the material, it was returned to an addressee and they were then required to reproduce the material upon the issue of a further subpoena.”
35 I therefore propose to follow what I did in Parri, and the following course is to be adopted:
(1) The subpoena addressed to Dr Melanie Evans dated 10 August 2018 is set aside;
(2) That the defendant reissue a subpoena to Dr Melanie Evans in relation to the material that is not the subject of this application;
(3) That pursuant to s32D(3) of the EMPA, the defendant be granted leave to issue a subpoena to Dr Melanie Evans in relation to the material that is the subject of this application;
(4) That Dr Melanie Evans, the addressee, be instructed to respond to the subpoena by way of letter stating:
(a) any objections she may have to the production of any material the subject of the subpoena;
(b) in accordance with an order from this Court, she otherwise does not have to reproduce any material to the Court to comply with the subpoena;
(5) Subject to any further objections received from the addressee, that:
(a) from the subpoenaed material that has already been provided by Dr Melanie Evans, the two entries identified as confidential communication be redacted;
(b) that the redacted confidential communication and the balance of the subpoenaed material then be released to the defendant.
36 I shall make appropriate orders.
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