IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Institutional Liability List
S CI 2022 01270

HM (a Pseudonym)	Plaintiff	
		
v  		
		
Sister Mary Monaghan	Defendant	

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JUDGE:	Keogh J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	On the papers	
DATE OF RULING:	20 May 2024	
CASE MAY BE CITED AS:	HM v Sister Mary Monaghan	
MEDIUM NEUTRAL CITATION:	[2024] VSC 257	

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PRACTICE AND PROCEDURE — Leave to compel production of clinical records containing ‘confidential communications’ under section 32C Evidence (Miscellaneous Provisions) Act 1958 (Vic) — Whether application for leave is necessary if plaintiff consents to production — Operation of section 32E(1)(a) — KR v BR [2018] VSCA 159 — Skarbek v The Society of Jesus in Victoria & Ors [2016] VSC 622 — Application for leave unnecessary.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	G Boas	Ken Cush & Associates	
			
For the Defendant	S Hay KC with C Morshead	Wotton & Kearney	

HIS HONOUR:
1	The plaintiff, HM, brings this proceeding claiming damages for personal injury she alleges resulted from being sexually, physically and psychologically abused by three unidentified priests and other staff while living at Nazareth House, Brisbane between July 1961 and late 1967 in the care of the Congregation of the Sisters of Nazareth (‘Sisters’).  The defendant, Sister Mary Monaghan, is the nominated proper defendant for the Sisters within the meaning of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).
2	The defendant seeks general discovery of the plaintiff’s clinical records from Roxby Downs Family Practice (‘clinical records’) pursuant to the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) or, in the alternative, leave to compel their production pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘EMP Act’).  The parties agree that the clinical records contain ‘confidential communications’ as defined in pt II div 2A of the EMP Act.  The only issue to be resolved is whether, in circumstances where the plaintiff consents, the defendant is required to apply under s 32C of the EMP Act for leave to compel production of the clinical records.
Evidence
3	The plaintiff relies on affidavits of her solicitor, Sangeeta Sharmin, affirmed 20 February 2024, 6 March 2024 and 3 April 2024.
4	The defendant relies on affidavits of her solicitor, Richard Leder, sworn 19 February 2024, 1 March 2024, 7 March 2024 and 11 April 2024.
Application
5	On 8 March 2024, the defendant applied for orders that:
1. Pursuant to r 29.05.1 and/or r 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), by 15 March 2024 (or at the earliest available date after the Court rules on this application) the plaintiff is to make further general discovery and/or particular discovery in relation to the following categories of documents that are within the plaintiff’s possession, custody or control:
(a) Item 1.3 of Part 1 of Schedule 1 of the plaintiff’s affidavit of documents filed 26  July 2023, being a copy of the clinical records from Roxby Downs Family Practice (the Roxby Downs clinical records).
2. In the alternative to paragraph 1 above, the Court grants leave to compel the production of the Roxby Downs clinical records pursuant to section 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘discovery application’).
Correspondence leading to application
6	On 11 October 2023, the plaintiff’s solicitors Ken Cush & Associates (‘KCA’) sought a supplementary medico-legal report from psychiatrist Dr Diamond.  Dr Diamond was briefed with documents including the clinical records.  He delivered his supplementary report on 19 October 2023.  The report was served on the defendants on 4 December 2023.
7	On 12, 18 and 24 October 2023 and 9 November 2023, the defendant’s solicitors Wotton & Kearney (‘WK’) wrote to KCA requesting discovery of clinical records from three medical clinics referred to in the plaintiff’s affidavit of documents filed 26 July 2023.  The third category of clinical records referred to were those from Roxby Downs Family Practice.
8	On 15 November 2023, KCA discovered copies of the clinical records from the first two medical clinics and explained, in relation to the Roxby Downs records:
The clinical records from Roxby Downs constitute “confidential communications” for the purposes of Pt II Div 1A of the Evidence (Miscellaneous Provisions) Act 1958 (“EMPA”).
As such they cannot be produced, or adduced, by any party in the proceeding without an order of the Court satisfying the test in Section 32D EMPA.
We note that records from Roxby Downs have been provided to Mr Diamond. This was clearly necessary and appropriate as experts are required to be briefed with all relevant material to permit them to write a report to properly assist the Court and adhere to their duties under the relevant Code of Conduct.
However, the legislative structure of Pt II Div 1A of the EMPA appears to require the compelling party (the Defendants in this case) to make the appropriate application so that the Court can subsequently compel the Plaintiff to produce the documents.
To be clear, the Plaintiff is not objecting to the production of the records and is simply stating that the production of documents comprising “confidential communication” is a matter for the Court.
9	KCA and WK then exchanged a number of emails outlining their respective positions on the issue of whether the defendant needed leave to compel production of the clinical records under s 32C of the EMP Act.  On 16 February 2024, WK wrote to KCA:
We refer to the attached correspondence and your objection to provide the Roxby Down clinical records.
We note that:
1. those records were not identified as privileged in the Plaintiff’s Affidavit of Documents affirmed on 24 July 2023; and
2. in any case, the Plaintiff’s privilege over those documents was waived when the documents were provided to Dr Diamond for his assessment of the Plaintiff, and Dr Diamond’s report was served on us.
In those circumstances, we disagree that the Defendant is required to make an application to compel production of ‘confidential communications’ to access those documents, nor should it be put to the cost of us doing so.
We again, request that you provide us with a copy of the Roxby Downs clinical records by 5 pm on Monday 19 February 2024. Given you have previously indicated that the documents are within your possession and you do not object to their production, we consider that this time frame is reasonable.
10	On 20 February 2024, KCA responded to WK as follows:
We acknowledge receipt of your attached email dated 16 February 2024, seeking documents containing confidential communications. With respect, your position misconceives the nature of Pt II Div 1A of the Evidence (Miscellaneous Provisions) Act 1958. It is not a matter for the Plaintiff to waive the requirements of this legislative regime. Part II Div 1A requires an application to be made and the Court to determine the matter. Please file and serve your application urgently so that we may seek instructions on the matter.
11	On 23 February 2024, WK wrote to KCA indicating their intention to apply for leave under s 32C(1) of the EMP Act to compel the production of the clinical records.  The letter also provided:
Request for Consent
Section 32E(1) of the Act expressly provides that a protected person can provide their consent to production of confidential communications such that an application for leave to compel production under the Act is not necessary.
In circumstances where your client has previously provided the clinical records to Dr Michael Diamond for the purposes of his assessment of your client and preparation of a supplementary medico-legal report dated 19 October 2023 (which has been served in this proceeding), we consider that there is no basis for your client to oppose the production of the clinical records.
Accordingly, to avoid incurring the unnecessary cost and delay of an interlocutory application, we invite your client to provide her consent to the production of the clinical records pursuant to section 32E(1)(a) of the Act.
12	The parties indicated to the court that they were content for the defendant’s application to be determined on the papers.
Submissions 
Defendant
13	The terms of s 32E(1)(a) of the EMP Act indicate that the production or adducing of protected information is not prevented by the regime in pt II div 2A where the protected person provides their consent.
14	In circumstances where the plaintiff has the clinical records in her possession, consents to their production and has already relied on them in the course of this proceeding by providing them to her medico-legal expert, by reason of s 32E(1)(a) there is no need for the defendant to make a formal application for leave pursuant to s 32C of the EMP Act.  With consent provided, the defendant is not seeking to compel the plaintiff to produce the documents. 
15	It would be inconsistent with the just, efficient, timely and cost-effective resolution of the real issues in dispute to require leave even where a plaintiff provides consent.  If leave were required, all parties in civil proceedings, including plaintiffs, would be required to seek leave under s 32C of the  EMP Act whenever any clinical or counselling records which may contain even passing reference to alleged abuse were sought to be either obtained or adduced, irrespective of whether the relevant plaintiff consents to the production.
16	If the court considers that leave is required under s 32C of the EMP Act, the court should be satisfied that consideration of the three limb test in s 32D(1) favours the granting of leave for the following reasons.
17	The clinical records will have substantial probative value to a fact in issue because, to date, the plaintiff has been unable to identify any of the alleged perpetrators of the abuse.  Any prior reporting as to the circumstances of the abuse may either strengthen the defendant’s case on its stay and strike out applications, or alternatively enable the defendant to join the alleged perpetrators (or affiliated institution) as third parties for the purposes of a contribution claim. 
18	Further, access to the evidence will allow for proper consideration and, if appropriate, challenge of the basis of Dr Diamond’s expert opinion. 
19	Other evidence of similar or greater value is unavailable because:
(a)	any record of the plaintiff’s reporting of the allegations holds substantive probative value in light of the lack of particulars of certain alleged perpetrators; and
(b)	Dr Diamond’s report indicates that the relevant reporting of the allegations in the clinical records is the earliest available record of the plaintiff’s reporting of the allegations.
20	The public interest in preserving the confidentiality of confidential communications is of reduced importance in the present case because the plaintiff has voluntarily briefed her own medico-legal expert with the clinical records.  There is a significant public interest in allowing a party to civil proceedings access to evidence of substantial probative value in circumstances where another party has already had access to and relied upon such evidence to assist their own case. 
Plaintiff
21	The question of the proper construction of s 32E(1)(a) is uncertain.  In light of the purpose of div 2A of the EMP Act, the consent provision may only operate upon an application being made in accordance with the EMP Act’s requirements. 
22	The plaintiff cannot provide her consent outside of the making of an application in circumstances where that may be in breach of the proper operation of pt II div 2A of the EMP Act.
Statutory Provisions and Authorities
23	The provisions of the EMP Act relevant to this application are in pt II div 2A, which is concerned with confidential communications and protected health information. 
24	A ‘confidential communication’ is defined in s 32B as:
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. 
A ‘protected person’ is relevantly defined to mean:
(a)	in relation to a confidential communication—the person who made the communication;
25	Section 32AB sets out guiding principles for div 2A:
Guiding principles
It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—
(a)	there is a high incidence of sexual violence within society; and
(b)	sexual offences are significantly under-reported; and
(c)	a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
(d)	offenders are commonly known to their victims; and
(e)	sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred. 
26	Section 32C provides a scheme for the protection of confidential communications:
Exclusion of evidence of confidential communications and protected health information 
(1AA)	This section applies to the following information—
(a)	in a civil proceeding, a confidential communication;
…
(1)	In a legal proceeding—
(a)	a party cannot seek to compel another party to produce a document containing information to which this section applies;
(b)	a document is not to be produced if it would disclose information to which this section applies;
(c)	evidence is not to be adduced if it would disclose—
(i)	information to which this section applies; or
(ii)	the contents of a document recording information to which this section applies—
unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has complied with the requirements under section 32CA or 32CC (as the case requires) that are not waived. 
…
27	Section 32D sets out the requirements and mandatory considerations for the court when deciding whether to grant leave to a party under s 32C(1).  The requirements show that div 2A is concerned with both individual rights and the public interest relevant to confidential communications and protected health information.
28	Section 32E provides:
Limitations on privilege
(1)	This Division does not prevent the production or adducing of evidence–
(a)	with the consent of the protected person or, if he or she is under 14 years of age, with the consent of any person whom the court regards as being an appropriate person to give that consent; or
(b)	of information acquired by a registered medical practitioner by physical examination (including communications made during the examination) of the protected person in relation to the commission or alleged commission of an offence against the protected person; or
(c)	of a communication made, or the contents of a document prepared, for the purpose of a legal proceeding arising from the commission or alleged commission of the sexual offence; or
(d)	of a communication made, or the contents of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(e)	of a communication made if it is evidence of the commission of an offence of wilful and corrupt perjury.
29	There has been judicial consideration of s 32E in the following cases.  In Skarbek v The Society of Jesus in Victoria & Ors [2016] VSC 622 (‘Skarbek’), the defendant sought to compel the plaintiff to provide the balance of session notes from the plaintiff’s treating psychologist in circumstances where some of the notes had been disclosed and used in the preparation of expert reports for the purpose of the proceeding.  In considering whether the plaintiff’s conduct was inconsistent with the maintenance of confidentiality, Daly AsJ said:
Rather, I consider that the proper analysis, consistent with the authorities concerning loss of medical privilege, is whether, by reason of his conduct, the plaintiff has impliedly given his consent to the disclosure of the whole of Dr Pearce’s file, such that the limitation in s 32E(1)(a) applies.
Her Honour ultimately concluded that the plaintiff had not acted in a manner that was inconsistent with the maintenance of privilege in relation to the clinical records in question.
30	In KR v BR [2018] VSCA 159 (‘KR v BR’), the Court of Appeal considered s 32E(1)(a) consent in the context of implied waiver of the plaintiff’s rights to rely upon the div 2A regime.  The court considered that section 32E provided for limitations on the protection granted under div 2A.  The court noted that a report prepared by the plaintiff’s treating psychiatrist was ‘not itself caught by the statutory scheme’ as it was information acquired by the psychiatrist by physical examination of the plaintiff pursuant to s 32E(1)(c).  
31	I note that the plaintiffs in both KR v BR and Skarbek did not expressly consent to the production of the evidence in question, unlike in the circumstances of this application.  In KR v BR the court rejected the defendant’s submissions that, analogous to other kinds of privilege, div 2A confidentiality could be impliedly waived.
Analysis
32	Division 2A of pt II of the EMP Act creates ‘a separate regime’ which operates to prevent confidential communications from being produced or put into evidence unless the court grants leave under s 32C(1).  It is not in dispute that the clinical records contain confidential communications, or that the plaintiff (who is the ‘protected person’ for the purposes of the legislative regime) consents to the clinical records being produced.
33	The issue in this instance is the correct construction of s 32E(1) of the EMP Act.  I accept the defendant’s submission that the effect of s 32(1)(a) is that the regime in div 2A for the protection of confidential communications does not apply, and an application for leave under s 32C is unnecessary, where the protected person has consented to the production or adducing of evidence of those communications.  
34	The plain meaning of the text of s 32E(1) is that the legislative scheme for the protection of confidential communications in div 2A does not apply to prevent the production or adducing of evidence in any of the circumstances set out in sub-paras (a) to (e).  There is no ambiguity in the meaning of the words used.  Further, this construction is consistent with the approach taken by the Court in KR v BR and by Daly AsJ in Skarbek.  In both cases it was concluded that the confidentiality regime imposed by div 2A did not apply to prevent the production or adducing of evidence in any of the circumstances specified in s 32E(1).  As noted in KR v BR and Skarbek, s 32E(1) is a ‘limitation’ of the confidentiality regime set out in div 2A.
35	A purpose of div 2A is to protect the confidentiality of sensitive communications by a person against whom a sexual offence has been committed, and to prevent further harm to the person by reason of the procedures adopted in a legal proceeding.  Where a person consents to those confidential communications being produced or put into evidence in the proceeding, the extra protection afforded by div 2A is unnecessary.  
36	I note one further matter.  The defendant referred to the fact that the plaintiff had already relied on the clinical records in the course of the proceeding by providing them to Dr Diamond as being a fact relevant to the application of s 32E(1)(a).  However, the court said in KR v BR that implied waiver of privilege is not sufficient to remove confidential information from the div 2A regime.  Section 32E(1)(a) will only apply where a protected person has consented to the production of documents.  I am not satisfied that the plaintiff’s use of the documents by providing them to Dr Diamond has any relevance to the application of s 32E(1)(a).
37	For the above reasons, I consider that in circumstances where the plaintiff has given her consent, it is not necessary to grant leave under s 32C(1) of the EMP Act to compel production of the clinical records.  The records fall outside the protection regime established by div 2A by operation of s 32E(1)(a) and production is governed by the Rules.  It is unnecessary for me to consider the defendant’s submissions relating to the grant of leave.
Conclusion
38	I conclude that, pursuant to r 29.05.1 and/or r 29.08 of the Rules, the plaintiff is to make further general discovery and/or particular discovery of the clinical records.
39	I will hear from the parties as to the form of orders sought, including as to costs.