ES v Trustees of the Marist Brothers (County Court Victoria 3 July 2026; Not available online).
A written decision was not provided for this matter, with the Judicial Registrar indicating that the transcript would stand as the reasons of the court.
The defendant had issued a subpoena to Services Australia for Medicare and PBS records, which the plaintiff applied to set aside on the basis that the subpoena had no legitimate forensic purpose and was a fishing expedition. The plaintiff sought to distinguish this matter from Carter v AAL [2024] VSC 95, as in that matter the defendant was able to identify specific gaps in the plaintiff’s medical history (though there were also gaps here, it seems). The plaintiff also submitted that the subpoena will likely only produce a list of treaters, but not substantive records, and so it is not clear how the materials will be used as evidence of the plaintiff’s work capacity and/or effects of the abuse, and that even in the event it does identify practitioners, it does not, of itself, serve as a forensic purpose.
The defendant said that there was a substantial period of the plaintiff’s medical history over two decades after the alleged abuse that remains unaccounted for, that such evidence, if it exists, will likely be recorded in the subpoenaed materials. The defendant also argued that it should be entitled to explore whether there may be other contributing factors and causes and issues of credibility and reliability, where the effects of the alleged abuse have contributed so significantly to the plaintiff’s ultimate professional and life outcomes, particularly where there is an absence of medical material over a protracted period of time following the abuse.
The Judicial Registrar held that there were very likely other medical records and the subpoena would “close the gaps”. The defendant had shown that it is on the cards or that there was a reasonable possibility the documents will materially assist the defendants.
The plaintiff’s application was dismissed.
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