By Stuart Eustice, Partner and Henry Van Til, Lawyer
Warning: This article contains descriptions of sexual abuse. The content may be distressing or triggering for some readers. Please take care when reading and consider whether this material is appropriate for you at this time.
The Victoria Court of Appeal’s decision in Coker-Godson v Wangaratta Anglican Diocesan Corporations Ltd [2026] VSCA 72 considers the strict statutory protection given to confidential communications made by a complainant of sexual abuse to a medical practitioner or counsellor. The case reiterates the stringent threshold that must be met before the Court will grant leave to subpoena to a medical practitioner or counsellor’s records under s 32C and 32D of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (the Act). The Court of Appeal ultimately setting aside the leave previously granted by the primary judge to subpoena the treating psychotherapist as a consequence of the primary judge not having addressed the statutory conditions outlined in the Act.
The applicant alleges that Father Laurie Heydon sexually abused her as a child whilst she was attending a church in Cobram. She claims that the Diocese is liable for her loss and damage, including Functional Neurological Disorder (FND) and Post Traumatic Stress Disorder (PTSD) which she alleges resulted from the abuse. The applicant is seeking damages between $5.7 million and $6.7 million, including approximately $3.2 million for future medical expenses.
The respondent, the Wangaratta Anglican Diocesan Corporation Ltd (the Diocese) applied for leave to subpoena Dr Joanne Violet (Dr Violet), the applicant’s treating psychotherapist. The application was made under s 32C(1) of the Act, which generally prevents a party from compelling production of a document containing a “confidential communication” unless leave is granted. The applicant opposed the subpoena, contending the records were precisely the sort of protected communications the Act was intended to shield.
The respondent argued that the records of Dr Violet were likely to contain critical information about the causes, progression and treatment of the applicant’s FND and PTSD, as well as the effect of the alleged abuse on the applicant. Dr Violet had treated the applicant on more than 200 occasions, a report from Dr Violet had already been served which the applicant wished to rely on at trial.
The primary judge granted leave to serve the subpoena.
The Court set out the protective structure of the Act. Section 32C of the Act creates an initial exclusion against compelling production of confidential communications. This exclusion can be overcome following a strict test outlined in s 32D of the Act, which requires the following points to be satisfied on the balance of probabilities:
The Court noted the mandatory considerations in s 32D(2) of the Act, including the likely harm to the protected person and the importance of preserving confidentiality between counsellors and their clients. The Court also recognised the guiding principles of the Act, which recognises that there is a high incidence of sexual violence within society and that sexual offences are significantly under reported.
The Court of Appeal held the primary judge did not identify any fact in issue to which the records were said to have substantial probative value, and instead merely identified the three requirements she should have assessed. It was not enough to assume that Dr Violet held “material relevant to treatment” as an assumption does not meet the threshold that such evidence ‘will’ have substantial probative value. The Court stressed that the test is a “high bar”, as the Court must be positively satisfied that evidence will substantially affect the assessment of a fact in issue.
The Court also identified that the primary judge did not have access to the evidence and therefore was unable to ascertain whether the evidence is of substantial probative value.
The respondent’s case placed heavy weight on prognosis and causation, arguing that Dr Violet was the only clinician who had provided any ongoing treatment for the applicant’s FND. Dr Violet’s initial report also identified that she had seen the applicant for more than 200 sessions, and she referenced discussions between herself and the applicant about the alleged sexual abuse.
The Court did not accept this was sufficient. That records may assist in understanding a claim does not address the statutory requirement that the records will have substantial probative value. The Court noting the respondent had not made an application for the primary judge to inspect the documents under s 32CF of the Act, which would have placed the primary judge in a better position to assess the probative value of the records.
Whilst the leave granted to subpoena Dr Violet was set aside, the Court reiterated to the respondents they can still apply for the judge to inspect the confidential communications under s 32CF of the Act.
The decision reinforces that to subpoena a sexual abuse complainant’s communications with their medical practitioner or counsellor will face a high hurdle. A party must identify the fact in issue and demonstrate that the protected material will have substantial probative value to the fact in issue. The Court intimating that inspection of the records by the sitting judge would greatly assist such determination. The decision also confirms the continuing strength of the legislative policy behind s 32C and 32D of the Act.
At the same time, it must be noted that the Court left open the possibility that a later application might succeed, particularly if the probative value of the evidence becomes clearer.
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