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Judgment handed down in Skarbek v The Society of Jesus in Victoria and Ors

04 November 2016

On 26 October 2016, Associate Justice Daly ordered that twenty file notes from the file of a psychologist, Dr Geoff Pearce, be produced to the defendants in a proceeding brought by the plaintiff in relation to alleged sexual and physical abuse at the Burke Hall campus of Xavier College. The defendants sought leave under s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘Act’),  which prohibits confidential communications between alleged victims of sexual assault and their medical practitioners and counsellors from being disclosed or adduced into evidence without the leave of the Court or the consent of the alleged victim. In considering whether to grant leave, the Court must take into consideration the factors set out in s 32D of the Act. In order to grant leave, the Court must be satisfied that the evidence must have substantial probative value to a fact in issue in the proceeding, that other evidence of similar or greater value is not available, and the public interest in allowing disclosure outweighs the public interest in preserving the confidentiality of communications of this character and protecting an alleged victim of sexual assault from harm.

The defendants contended that they were not required to seek leave under s 32C of the Act, because in providing the defendants with reports and other documents prepared by Dr Pearce in 2013 as part of a consensual pre‑litigation claims process, the plaintiff had waived any right to claim confidentiality of the balance of Dr Pearce’s file. The plaintiff’s solicitors had also provided a substantial amount of Dr Pearce’s records in discovery. Further, the records are relevant to the question of whether the alleged abuse occurred, and the extent to which it contributed to the plaintiff’s poor physical and psychological health, in circumstances where the alleged abuse occurred some forty years prior to the plaintiff’s realisation of the abuse in 2012. The plaintiff consented to the disclosure of part of Dr Pearce’s file, but resisted production of records of all sessions between the plaintiff and Dr Pearce after an independent medico-legal expert diagnosed the plaintiff with a serious psychiatric condition in October 2012, on the basis that these sessions were for therapeutic purposes only, and that disclosure of these records would cause the plaintiff and his family severe distress and harm.

The Court determined that simply by reason of the provision of records of some confidential communications to the defendants, documents recording the balance of these communications did not necessarily lose their character of confidentiality, as they came into existence and were provided for a different purpose. The question is whether the plaintiff’s conduct was inconsistent with the maintenance of confidentiality, such that the plaintiff could be found to have given his implicit consent to their disclosure. The Court noted that principles of waiver associated with waiver of legal professional privilege do not sit comfortably with policy reasons behind and the protective purpose of s 32C of the Act, but proceeded on the basis that principles of waiver could apply. However, the Court did not consider that the provision of expert reports and other records on an informal basis, or by simply making the allegations of abuse in the proceeding, that the plaintiff had waived any confidentiality in the balance of Dr Pearce’s file. The Court also noted that, given the obligation upon the Court under the Civil Procedure Act 2010 (Vic) to promote the early resolution of disputes, the Court should be cautious of deterring parties from engaging in a full and frank exchange of information prior to the issue of court proceedings.

The Court did however find that, in respect of audio tapes of sessions held by Dr Pearce, transcripts of which had been provided to the defendants as part of the consensual pre‑litigation claims process, the plaintiff had waived any claim to confidentiality on the basis that in the absence of the audio tapes the transcripts which have been provided would be incomplete and possibly misleading. However, given the evidence of the potential harm to the plaintiff should the audio tapes fall into the wrong hands, strict conditions were imposed upon the distribution of the audio tapes such that they would only be able to be heard by the defendants’ medico-legal expert.

Having found that there had been no waiver of confidentiality on the part of the plaintiff in respect of the balance of Dr Pearce’s file, the Court then went on to consider whether leave should be granted under s 32C. The Associate Judge inspected the balance of Dr Pearce’s records, which totalled some many hundreds of pages of records, and concluded that of those records, only twenty file notes recorded communications which will have substantial probative value to an issue in the proceeding. Those records have substantial probative value because they record sessions where the plaintiff referred to the emergence of further memories of what had occurred at Burke Hall, the emergence of memories concerning other childhood abuse, or possible childhood abuse, and details of the physical and psychological impact of the alleged abuse upon him. The documents ordered to be produced do not refer to his partner or daughters and his relationships with them, or other sensitive personal matters.  Given the passage of time since the alleged abuse and the absence of other corroborative evidence, these records are the best available evidence of the factual matters before the Court.

Given that the information in a substantial proportion of these records had already been summarised in a report prepared by Dr Pearce and provided to the defendants in 2013, the Court found that the additional harm to the plaintiff of providing these relatively limited number of records was outweighed by the need for the defendants to have a fair trial.  As for the potential ‘chilling effect’ upon other victims of sexual abuse of ordering disclosure of documents of this character, the Court recognised those concerns, but also noted that there are particular features of the current case which might limit the broader application of this decision. In particular, in the current case, the alleged perpetrators are both deceased, there are no other corroborative witnesses, and the plaintiff only realised the alleged abuse some forty years after it took place. Finally, strict conditions have been imposed upon the disclosure of these records, with inspection limited to the legal representatives of the defendants and the medico-legal expert engaged by them to conduct an examination of the plaintiff. 

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