By: Richard Leder, Samantha Saad and Michelle Rich

HM (a pseudonym) v Sister Mary Monaghan [2024] VSC 257

At a glance

• In the first judgment of its kind regarding the construction of s32C(1) of the Evidence (Miscellaneous Provisions) Act 1958 (the EMPA), the Victorian Supreme Court ruled that in circumstances where a protected person consents to the production of clinical records which contain ‘confidential communications’, a defendant is not required to make an application to the Court for leave to produce those records.
• The decision confirms that the purpose of Division 2A of the EMPA 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 that person by reason of the procedures adopted in a legal proceeding. However, the decision clarifies that where a protected person consents to confidential communications being produced or put into evidence in the proceeding, the extra protection afforded by Division 2A is unnecessary.

Background

The plaintiff, ‘HM’, claims that she was sexually, physically, and psychologically abused by unidentified priests and named Sisters while living at Nazareth House, Wynnum, between 1961 and 1967. The defendant sought access to HM’s clinical records and the plaintiff refused to produce the requested documents on the basis that they contained confidential communications. The plaintiff confirmed that she consented to the documents being provided to the defendant, but considered it necessary for the defendant to make an application to the Court for leave to access the subject documents, pursuant to section 32C of the EMPA. The issue concerned whether the defendant was required to make an application for leave to access the plaintiff’s clinical records under section 32C of the EMPA in circumstances where the plaintiff had already consented to the production of the records.

Submissions

The defendant submitted that section 32E(1)(a) of the EMPA explicitly allows for the production of confidential communications and protected information if the protected person consents, thus negating the need for a formal application for leave to access those communications under section 32C. It asserted that requiring such an application to be made when consent had been provided would lead to unnecessary delays and costs, and would be counterproductive to the efficient resolution of disputes between parties to litigation.

Conversely, the plaintiff submitted that the proper construction of section 32E(1)(a) was uncertain. She asserted that the section could be construed to mean that the protected person’s consent would only operate upon an application for access to the subject documents being made in accordance with the requirements of the EMPA, and that if confidential communications were provided outside of an application being made, the plaintiff could be in breach of Division 2A of the EMPA.

Outcome

Justice Keogh found in favour of the defendant on the question of whether it was required to make an application to the Court pursuant to section 32C of the EMPA for access to confidential communications in circumstances where the plaintiff had already consented to those communications being made available to the defendant. His Honour ruled that it was unnecessary for the defendant to make that application or for the Court to grant leave for the defendant to access the subject records in the circumstances. He stated that the legislative scheme for protecting confidential communications does not apply when the protected person consents to the production of the confidential communications, as specified in s32E(1)(a).

Impact

The decision of Keogh J clarifies the application of s32E(1)(a) of the EMPA, emphasising that consent from the protected person overrides the need for defendants to apply for leave from the Court to access confidential communications. It reinforces the importance of explicit consent in waiving confidentiality protections and promotes the efficient and cost-effective resolution of legal proceedings by reducing unnecessary procedural steps in those circumstances.

Richard Leder, Samantha Saad and Michelle Rich from Wotton Kearney represented the defendant in this proceeding.