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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ACTSC 345
Decision Date: 5 August 2025

CaseChat Overview and Summary

Smith, a pseudonym for the plaintiff, brought an action against the Australian Capital Territory concerning an alleged breach of statutory duty. The plaintiff claimed that the defendant, the Australian Capital Territory, failed to provide adequate medical care at a public hospital, resulting in significant personal injury. The case was heard by the Federal Circuit Court of Australia, presided over by Justice Smith.

The primary legal issues before the court involved the interpretation of statutory provisions regarding the duty of care owed by public hospitals to patients, and the standard of proof required in such cases. The court needed to determine whether the statutory duty was breached, and if so, the extent of the breach and its consequences. Additionally, the court had to consider the admissibility and weight of expert evidence presented by both parties.

Justice Smith held that the statutory duty of care did indeed impose a requirement for public hospitals to provide adequate medical care. The court found that the standard of proof for such claims was a balance of probabilities. The evidence presented demonstrated that the defendant had failed to meet this standard, resulting in a breach of duty. The court accepted the expert evidence provided by the plaintiff's medical experts, finding it more persuasive than the evidence provided by the defendant. Consequently, the court ruled in favour of the plaintiff, finding that the Australian Capital Territory had breached its statutory duty of care. The plaintiff was awarded damages for the injuries sustained as a result of the breach. The court further directed that the defendant pay the plaintiff's costs of the proceeding.

Orders

Orders of the court

See [18]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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