LXS (a pseudonym) v ACT [2026] ACT 199 (Link to JADE).
This is further example of an interlocutory application for leave to disclose and use protected confidences. The plaintiff LXS consented to the disclosure.
LXS asserted that the Territory is vicariously liable for abuse occurring while a teacher was engaged as an employee of the school. The defendant made an application first, for the granting of leave to issue subpoenas and secondly, for inspection and disclosure of protected confidence evidence.
The court held that there was a legitimate forensic purpose in requesting the records and so leave to issue subpoenas was granted. Some of the documents produced contained protected confidence evidence. Some related to third parties.
At [15] the court said:
It is a matter of significance that LXS, who is primarily the subject of the protected confidence evidence contained in the records, consents to the inspection and disclosure of the documents. It is also relevant to the task of weighing the public interest considerations mitigating against disclosure that LXS has chosen to commence this litigation, in circumstances where he must have understood its subject matter may involve consideration of his medical history as a component of assessing the impact of the described abuse upon him.
At [13] the court noted:
In making the determination, there are mandatory considerations to which regard must be had:
(a) the public interest in ensuring victims of sexual offences receive effective counselling or treatment;
(b) the capacity for disclosure to dissuade victims of sexual and family violence offences to seek counselling, or to diminish the value of counselling or other treatment;
(c) the probative value of the evidence under consideration to a fact in issue in the proceeding and the availability of other evidence of similar or greater probative value about the same subject matter;
(d) the likelihood disclosure will affect the outcome in the case;
(e) the attitude of the persons to or by whom the protected confidence was made;
(f) whether there is a discriminatory belief or bias underpinning the request for disclosure;
(g) whether, and if so to what extent, there is a reasonable expectation of confidentiality attaching to the protected confidence, and the potential prejudice to the privacy of any individuals concerned, with due regard to whether those considerations have lessened with the passage of time since the disclosure was made.
After weighing all of the mandatory considerations, the court considered it appropriate in this case to give leave for inspection and disclosure of the protected confidence evidence.
[BillMaddensWordpress #2542]