Svilicich v Richmond Fellowship Act Incorporated

[2024] ACTSC 224

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Svilicich v Richmond Fellowship ACT Incorporated

Citation: 

[2024] ACTSC 224

Hearing Date: 

31 May 2024

Decision Date: 

15 July 2024

Before:

Baker J

Decision: 

(1)  The Second Defendant is to pay the Plaintiff’s costs of the applications filed on 26 April 2024 and 8 May 2024.

Catchwords: 

CIVIL LAW – PRACTICE AND PROCEDURE – COSTS – application by the Second Defendant seeking leave nunc pro tunc for the issue of NNPPs – parties agreed leave should be granted pursuant to s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the issuing of subpoenas – counselling and psychological records expressly sought after in the NNPPs – leave required – the Second Defendant is to pay the Plaintiff’s costs of the applications.

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 79D(2)

Cases Cited: 

Di Cesare v Bird (Subpoena application) [2020] VSC 336 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Ross v Gordon (No 2) [2023] ACTCA 40

Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157

Parties: 

James Edward Svilicich ( Plaintiff)

Richmond Fellowship ACT Inc (First Defendant)

Trustees for the Roman Catholic Church for the Archdiocese of Canberra and Goulburn ( Second Defendant)

Australian Capital Territory (Third Defendant)

Representation: 

Counsel

S Robinson ( Plaintiff)

D Crowe ( Second Defendant)

Solicitors

Shine Lawyers ( Plaintiff)

Wotton & Kearney ( Second Defendant)

File Number:

SC 432 of 2023

BAKER J:      

Introduction

1․In an application filed on 26 April 2024, the Plaintiff sought orders setting aside Notices of Non Party Production (NNPPs) that had been issued by the Second Defendant to the North Canberra Hospital, Justice Health and Forensic Mental Health, Canberra Health Services and ACT Corrective Services, together with the costs of the application (initially sought on an indemnity basis, but later revised so that costs were only sought on an ordinary basis).

2․In an application filed on 8 May 2024, the Second Defendant sought the following orders:

(1)Leave be granted nunc pro tunc pursuant to s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)(“EMP Act”) for the issue of NNPPs by the Second Defendant to North Canberra Hospital, Canberra Health Services, Justice Health and Forensic Health Network and ACT Corrective Services; and

(2)The parties be granted liberty to apply to the Court to examine any such document as may contain a protected confidence under s 79H of the Act to determine whether the parties should be granted leave for the disclosure of any such protected confidence in and for the purposes of the proceeding.

3․Both applications were listed for hearing on 31 May 2024.

4․At the commencement of the hearing, the parties informed the Court that it was agreed orders should be made setting aside each of the NNPPs, and that leave should be granted pursuant to s 79D(2) of the EMP Act for the issue of subpoenas by the Second Defendant to North Canberra Hospital, Canberra Health Services, Justice Health and Forensic Health Network and ACT Corrective Services. However, the parties were not able to reach an agreement as to the costs that should follow from the making of these orders.

5․Noting the parties’ consent, I set aside the NNPPs previously issued by the Second Defendant to the North Canberra Hospital, Canberra Health Services, Justice Health and Forensic Health Network and ACT Corrective Services. I also granted leave under s 79D(2) for the issue of subpoenas by the Second Defendant to each of those entities. I reserved the question of costs.

6․For the reasons outlined below, I have determined that the Second Defendant should pay the Plaintiff’s costs of these applications.

Background

7․On 1 February 2023, the Plaintiff served a Personal Injury Claim Notification (PICN) on the Defendants in relation to a claim of sexual and physical abuse alleged to have occurred during the plaintiff’s placement at Marymead Child and Family Centre in 1998.

8․On 18 March 2023, the Second Defendant sent a letter to the Plaintiff advising that the PICN was non-compliant with the Civil Law (Wrongs) Act 2002 (ACT) for several reasons, including that the PICN failed to identify the Plaintiff’s treating practitioners and did not provide a signed Authority enabling the Second Defendant to obtain medical records.

9․On 17 April 2023, the Plaintiff responded to this letter, noting that “given that documents produced by medical practitioners and other similar organisations may contain privileged documents, the Claimant will not be signing any authority to access documents”.

10․On 23 October 2023, the Plaintiff commenced proceedings against the Defendants in this Court.

11․On 8 January 2024, the Second Defendant requested further and better particulars, including the provision of details of the plaintiff’s treatment practitioners. In an answer to particulars dated 27 February 2024, the Plaintiff replied that “a Medicare Claims History Statement will be provided in due course”. On 22 March 2024, the Second Defendant again requested that the Plaintiff identify his treating practitioners so that medical records could be obtained.

12․Having not received a response from the Plaintiff as to the details of his medical providers, the Second Defendant issued NNPPs to North Canberra Hospital (lodged 8 April 2024), Canberra Health Services (lodged 4 April 2024), Justice Health and Forensic Mental Health Network (lodged 4 April 2024) and ACT Corrective Services (lodged 9 April 2024). The Notices addressed to North Canberra Hospital, Canberra Health Services and Justice Health and Forensic Mental Health Network were issued on 8 April 2024 and the Notice to ACT Corrective Services was issued on 16 April 2024. The schedules of these NNPPs requested production of, amongst other documents, psychological records and counselling records of the Plaintiff.

13․On 15 April 2024, the Plaintiff sent a letter to the Second Defendant advising that the documents sought in the NNPPs were likely to include protected confidences within the scope of s 79A of the EMP Act and requesting the Second Defendant withdraw the NNPPs. The Plaintiff advised in further correspondence that if the NNPPs were not withdrawn, the Plaintiff would make an application seeking the NNPPs be set aside, together with costs.

14․The Second Defendant responded on the same date, advising that if the plaintiff had not “sought counselling and psychological treatment at both of Canberra’s Hospitals as well as via Justice Health … there is no basis upon which [the Plaintiff] can assert that those entities would hold [protected confidences]”.

15․As noted above, on 26 April 2024, the Plaintiff filed an application seeking orders setting aside the NNPPs that had been issued by the Second Defendant. On 8 May 2024, the Second Defendant filed the application referred to at [2] above, seeking orders nunc pro tunc, for the grant of leave in respect of the NNPPs that had already been issued.

16․On 8 May 2024, the Plaintiff sent a letter to the Second Defendant, which advised that “the Plaintiff accepts there is a legitimate forensic purpose in seeking access to the records sought by way of the Notices for Non-Party Production”. However, the plaintiff continued, “the issue the Plaintiff takes is that the NNPP’s … specifically require production of documents recording protected confidences in contravention of section 79D(3)(a) of the Act”. The Plaintiff further advised the Second Defendant that none of the entities to which NNPPs were issued had produced records to the Plaintiff.

Determination

17․It is well established that the discretion to award costs is "very wide, although it must be exercised judicially, in accordance with established principle and the statutory context”: Ross v Gordon (No 2) [2023] ACTCA 40 at [61], citing Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 86 [35] and 96 [65].

18․The Second Defendant did not act properly in issuing the NNPPs without the Court’s leave. Section 79D(3) of the EMP Act provides that:

(3) Without limiting subsection (2)––

(a)a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; …

19․In an affidavit affirmed on 8 May 2024, the Second Defendant’s solicitor explained that she did not anticipate any of the entities to which the NNPPs were issued would hold protected confidences within the meaning of s 79A of the EMP Act.

20․It is difficult to understand why the Second Defendant’s solicitor formed this view. Section 79A of the EMP Act defines a protected confidence as “a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed (the counselled person)”. The proceedings to which the NNPPs related included allegations of sexual abuse. The records sought from the entities included “counselling records” and “psychological records”. A report that had been served on the Second Defendant by the Plaintiff on 3 December 2022 (well prior to the issue of the NNPPs) indicated that the Plaintiff had seen a psychologist whilst he was in custody.

21․In respect of the NNPPs issued to ACT Corrective Services and Justice Health and Forensic Health Network, it was at least on the cards that (i) the documents sought to be produced under the NNPPs would contain records relating to any such consultation; and (ii) that any disclosure of the alleged sexual assaults to a psychologist by the Plaintiff would constitute a “protected confidence” within the meaning of s 79A. It was less certain that protected confidences would be held by North Canberra Hospital or Canberra Health Services in comparison to Corrective Services and Justice Health. However, in circumstances where those records were expressly within the documents sought to be produced, leave under s 79D was required.

22․This Court has held that leave may be granted nunc pro tunc where a party inadvertently fails to seek leave under s 79D before issuing a subpoena or other process requiring the production of documents: Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 at [36]; cf Di Cesare v Bird (Subpoena application) [2020] VSC 336 at [36]. However, the Court’s power to grant leave nunc pro tunc should not be viewed as an invitation by parties to ignore s 79D(3) by requiring production first, and seeking leave later.

23․The Second Defendant now properly accepts that leave should have been sought before issuing the NNPPs. It is the Second Defendant’s failure to seek that leave, and its further refusal to withdraw the NNPPs and to issue new process complying with s 79D that necessitated this hearing. In these circumstances, the Second Defendant should pay the Plaintiff’s costs of responding to both applications.

24․In so finding, I have not overlooked the Plaintiff’s conduct in the proceedings to date. The Second Defendant repeatedly sought from the Plaintiff information as to the details of his treating practitioners. This is information that the Plaintiff was obliged to provide so as to enable the Second Defendant to properly investigate his claim. The Plaintiff’s answers to the Second Defendant’s requests for particulars were entirely unsatisfactory. However, these matters do not absolve the Second Defendant from its responsibility to seek leave under s 79D(3) of the EMP Act.

Orders

25․For the reasons outlined above, the Second Defendant is to pay the Plaintiff’s costs of the applications filed on 26 April 2024 and 8 May 2024.

I certify that the preceding twenty five [25] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A Watson

Date: 15 July 2024