Smith (a pseudonym) v Australian Capital Territory

[2025] ACTSC 345

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Smith (a pseudonym) v Australian Capital Territory
Citation:	[2025] ACTSC 345
Hearing Date:	25 July 2025
Decision Date:	5 August 2025
Before:	Muller AJ
Decision:	See [18]
Catchwords:	CIVIL PRACTICE AND PROCEDURE – EVIDENCE –
application for leave to disclose produced protected confidence
evidence – mandatory considerations in granting leave – evidence inspected by Court – plaintiff consents to disclosure –
leave granted
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 6601A
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Ch 4, Div 4.4.3, ss 79D, 79F, 79G, 79H
Cases Cited:	BJT v Australian Capital Territory [2025] ACTSC 69
Hall (a pseudonym) v Trustees of the Roman Catholic Church
for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113 R v Chute (No 5) [2019] ACTSC 52
Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157
Parties:	Ella Smith (a pseudonym) (Plaintiff)
Australian Capital Territory (First Defendant) Robert Martin Forsberg (Second Defendant)
Representation:	Counsel
D Crowe (Plaintiff) J Marshall (First Defendant)
K Fox (Second Defendant)
Solicitors
Donaldson Law (Plaintiff) ACT Government Solicitor (First Defendant)
Greg Walsh & Co (Second Defendant)
File Number:	SC 56 of 2024
MULLER AJ:
Introduction
1․	The plaintiff makes a claim for personal injury suffered as a consequence of a grooming
process initiated by the second defendant and culminating in his sexual assault of her
on multiple occasions at a time when she was a child in her early teenage years.
2․	The occasion for the assaults was the plaintiff’s attendance at Deakin High School (the
school) in Canberra, where the second defendant was employed as a teacher and
volleyball coach. The first sexual assault is alleged to have occurred when the plaintiff
was aged 15. The plaintiff alleges psychological injury and consequent loss and damage
as a result of the abuse to which she was subject.
3․	The plaintiff pleads the abuse as against the second defendant teacher. She sues the
first defendant (the Territory) in negligence, referring to its systemic failures to afford her
a reasonable level of protection in its care, control, operation and management of the
school. In addition, she asserts that the school and, in turn, the Territory, is vicariously
liable for the actions of the second defendant that occurred in the course of his
engagement at the school.
4․	It is entirely unsurprising that over the years since the subject events, the plaintiff has
from time to time received treatment in the form of medical and ancillary services,
including treatment relating to her psychological health. It is in the context of the first
defendant's desire to review some of those medical records that the need for the present
application has arisen.

The protected confidences legislation

5․	In the ACT, as in other Australian jurisdictions, legislation has been enacted that provides
a public interest immunity against disclosure of confidential counselling material relating
to allegations of sexual assault or family violence. The relevant provisions are contained
in Div 4.4.3 of Ch 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act).
Relevantly for these purposes, there is a requirement for leave of the court before a party
can seek orders compelling the production of a document that records a protected
confidence within the meaning of the Act.
6․	The legislation is framed in such a way as to require leave to be sought at three stages
of the disclosure process. In Stanley (a pseudonym) v Commonwealth of Australia [2023]
ACTSC 157 at [17]-[25], McCallum CJ identified the stages as:

(a) Leave to compel production of protected confidences to the court: ss 79D(3)(a)

and 79F.

(b) Leave to inspect and make use of the protected confidences after preliminary

examination by the court: s 79H.

(c) Leave to adduce evidence of or to tender the protected confidence in the

proceedings: s 79D(3)(b).

7․	In respect of the subject confidences, the parties are currently at the second stage.
Orders were made previously by McCallum CJ on 2 May 2025, in accordance with s
79D of the Act, granting leave nunc pro tunc in respect of certain documents already
produced by Sapphire Coast Medical Practice and Dr Bruce Stevens, pursuant to notices
for non-party production. The Court also gave leave to the first defendant, pursuant to r
6601A of the Court Procedures Rules 2006 (ACT), to issue subpoenas requiring
production of material likely to include protected confidence evidence to the following
entities:

(a)	Catholic Care;
(b)	Stable Change Equine Therapy and Counselling;
(c)	Sapphire Coast Medical Practice; and
(d)	Dr Bruce Stevens.

8․	Catholic Care have indicated that they have no documents to produce. The other three
entities have now produced documents to the Court in response to the subpoenas they
received. The Court is now required to conduct a preliminary examination of the material
produced to determine whether leave should be given: s 79G(1).
9․	Section 79G provides:

79G

Preliminary examination of protected confidence evidence

(1)

If the court is satisfied that the applicant has established a legitimate forensic
purpose for seeking the leave, the court must then conduct a preliminary
examination of the protected confidence evidence to decide whether leave
should be given.

(2)

For the preliminary examination, the court may––

(a)	require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or
(b)	require the counsellor or, if the counsellor provides counselling on behalf

of an entity, the principal or another representative of the entity––

(i)      to give the court written answers to any questions; or

(ii)     to attend the court for oral examination.

(3)

The court may also permit a written statement be made by the counselled
person about the harm the counselled person is likely to suffer if leave is
given.

(4)

The court must not order a person to attend for oral examination under
subsection (2) (b) (ii) unless the oral examination of the person is necessary
for the effective conduct of the preliminary examination.

(5)

Only a person mentioned in subsection (2) may be ordered to answer
questions or be examined under this section.

(6)

The preliminary examination must be conducted––

(a)	in the absence of the public and the jury (if any); and
(b)	in the absence of the parties to the proceeding and their lawyers, except to the extent otherwise decided by the court.

(7)

Evidence taken at the preliminary examination—

(a) if the evidence is a statement taken under subsection (3)—must not be

disclosed to the parties or their lawyers (other than the counselled person

or their lawyer); or

(b) in any other case—must not be disclosed to the parties or their lawyers,

except to the extent otherwise decided by the court.

(8) A record of the preliminary examination must be made, but must not be made
available for public access.

10․	In R v Chute (No 5) [2019] ACTSC 52 at [22], Mossop J summarised the requirements
of this stage as:

Section 79G requires the court to conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given. For that purpose s 79G(2) has two alternatives, the first is to require anyone who has custody or control of the document recording a protected confidence to produce the document to the court for inspection. The second is to require the counsellor or the principal or other representative of the entity on behalf of whom the counselling was provided to give the court written answers to questions or attend the court for oral examination. In the present case what was sought was the issue of subpoenas to obtain documents. The difficulty is that the application as formulated sought the issue subpoenas which did not adequately identify the respondent in a manner that would be consistent with s 79G(2)(a) or allow compliance with the subpoena to be enforced.

11․	Consistently with the approach taken by this Court in BJT v Australian Capital Territory
[2025] ACTSC 69 at [10] and Hall (a pseudonym) v Trustees of the Roman Catholic
Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113 at [45], I have
undertaken a preliminary examination in accordance with the requirements of s 79G.

The application

12․	The first defendant, by its present application in proceeding, now seeks the Court’s leave,
pursuant to s 79H of the Act, for disclosure of protected confidences contained in the
medical records of:

(a)	Stable Change Equine Therapy and Counselling;
(b)	Sapphire Coast Medical Practice; and
(c)	Dr Bruce Stevens.

13․	The mandatory considerations that arise pursuant to s 79H(3) have the effect of creating
a more rigid standard for the granting of leave than that arising under s 79F, that requires
the establishment of a legitimate forensic purpose for seeking the leave. Section
79H(1)(a) provides that the court may give leave for disclosure of the protected
confidence in a civil proceeding only if satisfied that “the public interest in ensuring the
proceeding is conducted fairly outweighs the public interest in preserving the
confidentiality of the protected confidence”. The mandatory considerations in s 79H(3)
are then as follows:

79H	Giving of leave to disclose protected confidence
…
(1)	In making a decision under subsection (1), the court must have regard to—
(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.

14․ Those considerations are not exhaustive: s 79H(4).

The subject documents

15․	There is, at one level, a tension between the objects of this part of the Act in seeking to
minimise the disclosure of protected confidences, with a view to ensuring that victims of
sexual offences are not dissuaded from disclosing their experiences, and the obligation
to give reasons in a public judgement that satisfactorily demonstrate due regard for the
mandatory considerations.
16․	After having had careful regard to the mandatory considerations in s 79H(3), I am
satisfied that disclosure of the protected confidences contained in the material under examination is appropriate, as the public interest in ensuring the proceeding is conducted
fairly outweighs the public interest in preserving the confidentiality of the protected
confidence. I have given particular consideration to:

(a)	The plaintiff's consent to the disclosure of the protected confidences;
(b)	The denial of liability by each of the defendants and the dispute between the

parties regarding the quantification of the plaintiff’s claim; and

(c) The likely probative value of the material under consideration, particularly in

relation to the issue of quantum.

Orders

17․	I grant leave for the disclosure of the protected confidences in the material produced
under subpoena identified in the first defendant’s application.
18․	I make the following orders:

(1)	Pursuant to s 79D(2) and s 79H of the Evidence (Miscellaneous Provisions)
Act 1991 (ACT), leave is granted to the parties to inspect the records (the
material) produced by:

(a)	Stable Change Equine Therapy and Counselling;
(b)	Sapphire Coast Medical Practice; and
(c)	Dr Bruce Stevens.

(2)	The plaintiff is granted first access to the material for a period of three days
from the date of this order.
(3)	Thereafter leave is granted to each of the parties to rely upon the material for
the purposes of the proceeding, subject to any later ruling as to admissibility
pursuant to s 79D(3)(b).
(4)	The costs of the application are to be costs in the cause.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate:

Date: