Hubicki v Australian Air League [2026] VSC 596 (Link to JADE).
This interlocutory decision concerned the defendant’s application to inspect treating notes of plaintiff’s treating psychologist Dr Withers, which required consideration of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) ss 32C, 32D .
The plaintiff sought damages for injuries suffered as a result of his childhood abuse by Peter Diwell, who at the relevant time, was a volunteer engaged by the defendant, Australian Air League Incorporated.
Dr Withers was in a unique position of having been the plaintiff’s treating psychologist since April 2022 and the primary treater of the plaintiff in relation to his psychological health.
The court held ([53]) that it is for the defendant, being the applicant for leave, to identify the facts in issue to which the protected evidence will have substantial probative value. In this case, the defendant had not identified with helpful precision the relevant facts in issue. In particular, the court did not accept that there is any real suggestion that the plaintiff recovered repressed memories of the abuse. The plaintiff’s attempts to suppress his memories of the abuse, described to the experts, was of an entirely different order to cases involving the recovery of long forgotten memories of childhood sexual abuse.
The court accepted that the notes would be capable of rationally affecting the assessment of the probability that the plaintiff’s psychiatric injury resulted from the abuse rather than the workplace stressors.
However regarding the question “Is evidence of similar or greater probative value unavailable?” the court was not persuaded. At [64] the court said that the evidence of the plaintiff and Dr Withers, both in the form of her reports and her oral testimony, is available evidence of a similar probative value. There was no reason to believe the plaintiff will not be cross-examined on the issue of causation, and in particular, the role of the workplace incident in causing his psychiatric injury. The plaintiff’s counsel has indicated that the plaintiff intends to call Dr Withers. There can be no doubt that she will be extensively questioned about her change of opinion as to the causes of the plaintiff’s injury.
In relation to public interest, the court was satisfied that if Dr Withers’ notes are required to be produced to the defendant for inspection there is a high likelihood that the plaintiff’s long term therapeutic relationship with Dr Withers will be damaged by the loss of the safety of confidentiality and his treatment stifled. At [89] the court concluded:
am not satisfied that the public interest in admitting into evidence substantial probative evidence substantially outweighs the public interest in preserving the confidentiality of the confidential communications recorded in Dr Withers’ notes. I have reached this view notwithstanding AAL’s counsel’s submissions about measures which could be put in place to mitigate the effects of the loss of confidentiality. In my view, these measures are not sufficient to reduce the risk to an extent where the Court can find that the public interest precondition is met because they do not address the fundamental harm caused by the loss of confidentiality in this case. Furthermore, having reviewed Dr Withers notes and the availability of alternate sources of evidence, I am not satisfied that AAL’s right to a fair trial is prejudiced.
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