SWN v CJA[2025] QSC 218

1. The court can not grant an application for leave under this subdivision unless the court is satisfied that—

1. the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and

2. other documents or evidence concerning the matters to which the communication relates are not available; and

3. the public interest in admitting the communication into evidence substantially outweighs the public interest in—

1. preserving the confidentiality of the communication; and

2. protecting the counselled person from harm.

2. In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters—
   1. (a)
      the need to encourage victims of sexual assault offences to seek counselling;
   1. (b)
      that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;
   1. (c)
      the public interest in ensuring victims of sexual assault offences receive effective counselling;
   1. (d)
      that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;
   1. (e)
      whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;
   1. (f)
      that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;
   1. (g)
      the extent to which the communication is necessary to enable the accused person to make a full defence;
   1. (h)
      any other matter the court considers relevant.

(2A) For deciding the application, the court may do any of the following—

1. order a person to produce the protected counselling communication to the court;

2. consider the protected counselling communication;
3. make any other order it considers appropriate to facilitate its consideration of the protected counselling communication.

(2B) If the protected counselling communication is produced to the court under subsection (2A), the court must not disclose it, or make it available to a party to the proceeding, before deciding the application.

3. Also, for deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted.

…

8. In this section—

harm includes physical, emotional or psychological harm, financial loss, stress or shock, and damage to reputation.”

22. [22]
    The proper construction and application of s 14H(1)(a) is central to the issues for determination on this application.  It is a provision that has vexed judges responsible for determining SACP leave applications ever since the provisions were first introduced in 2017.
23. [23]
    An early common problem encountered by many judges dealing with applications for leave under s 14G of the Act arose from a literal reading of the legislation as it stood when first enacted.  Section 14H(1)(a) requires the court to be satisfied that the PCC the subject of the application “will…have substantial probative value”.  However, in circumstances where s 14F prohibited a person from doing of a range of things with respect to a PCC without the court’s leave, and where the legislation did not provide any express power for the court to inspect a document containing a PCC to determine whether to grant leave, how could the court satisfy itself of that matter?
24. [24]
    Different approaches were taken to this problem.  Some judges took the view that, in the absence of an express power to inspect documents containing the PCC, the court had an implied power to do so.  Others took a different view and decided that the court had no such power and was simply to decide the leave question without inspecting the documents but having regard to the matters in s 14H(1)(a), which included considering the nature of the PCC, the circumstances in which it was made and what any document recording the communication would likely contain.
25. [25]
    The matter was brought to a head in TRKJ v Director of Public Prosecutions (2021) 9 QR 472 (TRKJ).  In that case, Applegarth J held that the court had an implied power to inspect the PCC in order to decide whether to grant leave under s 14H, and the qualified privilege in s 14F did not apply to prohibit a court from doing so as the court was not “a person”.  His Honour also considered that the court had a similar implied power to order production of documents to itself in an appropriate case for the purpose of deciding questions of leave, but that such a course was not required as a matter of routine.
26. [26]
    Subsequently, and seemingly in a deliberate legislative intervention in advance of an impending appeal in the case of MH v HJ (2023) 15 QR 449, where the validity of relevant SACP provisions and Applegarth J’s conclusions in TRKJ were to be challenged, s 14H was amended by the Integrity and Other Legislation Amendment Act 2024 (Qld), which inserted ss 14H(2A) and (2B).  Section 14H(2A) now expressly provides the court with powers to do what Applegarth J found was implied by the legislation.
27. [27]
    The purpose and effect of this amendment to s 14H is identified in the Explanatory Note for the relevant Bill which states:^[1]

“The Supreme Court of Queensland held in TRKJ v Director of Public Prosecutions that the court has an implied power to review protected counselling communication for the purpose of deciding whether the communication will have substantive probative value, as part of its power to hear and determine an application for leave.

The absence of express statutory authority for the court to obtain and consider protected counselling communication for the purpose of deciding an application for leave may result in the court’s power to obtain and consider protected counselling communication being legally challenged.

The amendments to be moved during consideration in detail of the Bill ensure the SACP framework operates as intended. The amendments confirm the implied power of the court to consider protected counselling communication for the purpose of deciding an application for leave by expressly providing that the court may order that protected counselling communication be produced to it and that it may consider the protected counselling communication. …”

28. [28]
    Whilst the amendment to s 14H has made clear the court’s power in this respect, further pertinent observations made by Applegarth J in TRKJ must be borne in mind.  Although concluding that the court had an implied power to inspect documents containing a PCC to determine the question of whether to grant leave under s 14H, Applegarth J held:^[2]

“The fact that a power exists for the Court to itself inspect documents does not mean that it will be necessary or appropriate for a judge to exercise the power in most cases. It certainly does not mean that the power should be exercised as a matter of routine in applications under Pt 2, Div 2A, Subdiv 3. The implied power does not exist to cure deficiencies in proof by the applicant for a grant of leave.

Its too frequent exercise would undermine a purpose of the provisions which is to restrict access to protected counselling communications.”

 …and later stated:

“The judge was correct to interpret the Act as not requiring a court in deciding an application under s 14H to itself routinely consider the protected counselling communications. The purpose of the provisions is to strike a certain balance between the right to a fair trial and the public interest in preserving the confidentiality of counselling communications. The legislation neither expressly nor by implication compels courts to routinely consider for themselves protected counselling communications in order to hear and determine applications for leave under s 14H.”

29. [29]
    A question that arises on this application is whether Applegarth J’s views on the nature and use of the court’s implied power to inspect (and produce) documents containing PCCs remain relevant to the exercise of the court’s express powers under s 14H(2A).

1^st hearing – 24 May 2024

30. [30]
    In support of the application for leave to issue a subpoena for the counsellor’s records pertaining to the applicant, the first respondent filed written submissions in which he submitted that the prosecution case at trial would rise or fall on the evidence of the applicant and whether the jury accepted her evidence beyond reasonable doubt.  He then identified the following bases upon which he asserted that the PCCs the subject of the application will have substantial probative value:

    1. they will contain preliminary complaint evidence; and
    2. they will contain evidence of relevant underlying mental health conditions and the treatment of those conditions (and the impact of those matters upon the applicant).
31. [31]
    After reciting relevant background, including an excerpt from a statement provided by the applicant’s mother in which she explained the circumstances which ultimately led the counsellor to report the disclosures made by the applicant during counselling sessions to the police, the first respondent then submitted that there can be no doubt that the counselling records will contain an account of the offences given to the counsellor which would amount to preliminary complaint evidence pursuant to s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld).^[3]
32. [32]
    The first respondent then further submitted that if leave was granted to issue the subpoena to the counsellor, the next step in the proceeding would involve a hearing to determine what records were in fact privileged and, if so, whether any of them contained matters of substantial probative value.  He proposed that only the court and the legal representatives for the counselled person would be involved in that assessment and submitted that was an important factor when considering the public interest test and one which militated in favour of granting leave to issue the subpoena.
33. [33]
    In written submissions filed on behalf of the applicant as the counselled person, the applicant accepted that her credibility and reliability will be a central issue at trial; that evidence of the emergence of her complaint in the sessions with the counsellor may be seen to have substantial probative value; that there was no evidence to suggest that she was suffering from a mental health condition to the extent that it could affect her reliability or credibility as a witness; and that ultimately “…it may be found that the records which would amount to preliminary complaint evidence would have substantial probative value.”
34. [34]
    The applicant’s written submissions also contained the following:

“26.  It is submitted that this is not a matter where the Court would be required to exercise the power pursuant to section 14H(2A) of the Act as the following is already known:

1. The timing of when the counselling occurred as compared to the date range of the allegations;
2. That the allegations were discussed with the counsellor; and
3. That these discussions occurred before the allegations were reported to the police.

27. In a case where these specific details were unknown, it may be that a Court would order the production of the records so as [sic. to] make such factual findings which would contribute to a determination of whether the records had substantial probative value, or whether a finely balanced case existed for other reasons. In this situation it is submitted that the applicant will have to satisfy the requirements of s. 14H of the Act for leave to be granted to issue the subpoenas.”

35. [35]
    The second respondent concurred with the submissions made on behalf of the applicant.
36. [36]
    At the commencement of the hearing before Judge Long SC, counsel for the first respondent informed his Honour that the application initially sought leave to issue a subpoena and then a second stage would deal with the use of the material yielded by the subpoena.  Counsel then advised the judge that a draft order had been prepared to that effect.  After the judge indicated that, irrespective of any agreement as to the orders to be made, he would still need to receive and consider the material relied on in support of the application, the parties and the counselled person each formally read their material.  Thereafter, the judge interrogated counsel for the parties and the counselled person as to the basis for the orders sought.
37. [37]
    In doing so, it appears from the hearing transcript that early on the judge obliquely raised whether there was a need for the court to consider making an order for production of the counselling records under s 14H(2A) of the Act for the purposes of determining the first respondent’s application.  In response to that query, counsel for the first respondent stated that he was not pressing for such an order “…in light of the counselled person’s position and an acceptance that the draft order proposed would be appropriate in these circumstances.”
38. [38]
    Later on, the judge asked counsel for the first respondent whether, in light of the counselled person’s apparent concession as to substantial probative value, whether it was equally open for the first respondent to also now seek leave to inspect the records that would be produced by the counsellor in due course.  Ultimately, after further discussion, counsel conceded that he had not contemplated seeking a grant of leave in that respect at the first stage of the hearing of the application and in any event the first respondent was not presently pressing for such an order to be made.
39. [39]
    Counsel then confirmed that the first respondent would be content with only the lawyers for the applicant having access to the documents when they were produced in response to the subpoena, so that they could then make submissions to the court about their use in closed court at the next stage of the hearing of the application.  However, after the judge queried how the court might sensibly make the necessary determination of substantial probative value at the next stage of the hearing in the absence of hearing submissions from the parties, counsel modified his position and submitted that perhaps the lawyers for the first respondent might have access to the documents to make submissions about them, with the first respondent being removed from the process and the contents of the documents not being revealed to him.
40. [40]
    Thereafter, at the commencement of the oral submissions made on behalf of the applicant, the judge asked her counsel whether the position she was taking with respect to conceding the substantial probative value of evidence of preliminary complaint was based on his Honour’s decision in R v TJ [2023] QDCPR 21.  In that case, the judge had dealt with a similar leave application and had concluded that counselling records in respect of a complainant would contain evidence of preliminary complaint, which might be important to any meaningful understanding of the emergence of the complaint made against the defendant, and thus his Honour was satisfied that the counselling records would have substantial probative value.  Counsel for the applicant confirmed that she was adopting a similar approach.
41. [41]
    Counsel for the applicant then went on to address the issue of whether, in light of her concession as to substantial probative value, leave could also be sought in respect of the use of the documents that would be produced pursuant to the subpoena, submitting:

“…My ultimate submission would be though that the probative– well, the nature of the probative value that I’ve accepted, or the level of probative value that I accepted, wouldn’t go so far as to your Honour making a finding or a – make an order that the [first respondent] have an ability to inspect the material once it’s returned and, really, I refer to the balancing exercise with the public interest in section 14H(2) in that there is still some potential damage, for want of a better word, that can occur to someone for just the lawyers having to look at her private psychological records…

…I accept that…that it satisfies the requirements in order to issue a subpoena. My submission is that it doesn’t satisfy a further requirement or a further order that the [first respondent] be able to inspect that material, and I would like to be able to consider this a little bit further and make some further written submissions on this. And perhaps I could suggest to your Honour that if your Honour was minded to have the records subpoenaed that, on their return, we could perhaps have further submissions in relation to this particular issue and the progression of the matter generally.”

42. [42]
    After further discussion with the judge about who might have access to subpoenaed documents at the use stage of the application, counsel for the applicant then submitted:

“…I submit that…the confidentiality of that – those particular protective [sic. protected] counselling communications, while it may be ultimately admissible in the trial, if that determination is yet to be made, then they should be protected, and it should only be the court and the counselled person’s representatives who review those records. And if the determination as to admissibility or use or substantial probative value in the trial relates mainly to preliminary complaint and emergence of the complaint, there isn’t necessarily a need for the [first respondent] to view those records to make submissions on those points when that has already been identified by them as their argument…”

…and further:

“…It’s quite a narrow issue, in my submission, that the [first respondent] argues that the records will have substantial probative value for and that we concede that that substantial probative value exists in that it’ll be preliminary complaint. And also, that the – it’ll be preliminary complaint and also to show the emergence of the complaint.”

43. [43]
    In submissions on behalf of the prosecution, counsel for the second respondent conceded that the s 14H criteria were satisfied in terms of allowing the subpoenaing of the material.
44. [44]
    After hearing some further submissions from counsel as to how the matter might proceed on the next occasion, the judge made an order granting leave pursuant to s 14G of the Act for the legal representatives of the first respondent to issue a subpoena for the counsellor’s records pertaining to the applicant between 1 June 2022 and 2 December 2022.  His Honour further ordered that the subpoenaed material was to be provided in electronic format, by email, to the Maroochydore District Court and to the counselled person’s legal representatives by 4:00pm on 6 June 2024; that leave was granted pursuant to s 14G of the Act for the legal representatives of the counselled person to “inspect, copy and adduce the records” returned by way of subpoena to the counsellor; and listed the matter for further hearing on 15 July 2024.
45. [45]
    Whilst the judge did not provide reasons for making these orders, the basis upon which his Honour purported to be satisfied of the matters under s 14H appears from the matters I have summarised above and from the following remarks made by his Honour during an exchange with counsel for the second respondent after counsel conceded that the requirements of s 14H were satisfied for leave to issue the subpoena.  Counsel sought to qualify the concession by submitting that he was aware that there was other preliminary complaint evidence.  In response the judge interjected:

“HIS HONOUR:  That’s far from clear to me from the limited material I have. I appreciate that there’s suggestions of her talking to some friends. But again, the understanding – and it’s conceded by [the applicant’s counsel] here, I think, on what I have quite fairly is that the emergence of her complaints, as they’re presented to the police in their – to their full extent, is necessarily caught up in what can be expected to have been the interactions between her and the psychologist.

…

HIS HONOUR: Or put in another way, that in terms of examining that, that is how did this – these particular complaints emerge and become the subject of police investigation, necessarily the jury would need to have an understanding of that interaction between her and the psychologist and what was said to the psychologist.”

The counsellor’s objection

46. [46]
    Following the orders made by the judge, a subpoena, requiring production to the court of the counsellor’s records in respect of the applicant, was issued and served on the counsellor.  In response, the counsellor sent an email letter to the District Court at Maroochydore, in which she wrote:

“I am writing to respectfully request that the therapy notes of my client, [the applicant], a minor, not be released as per the subpoena issued by the District Court of Queensland…I respectfully request that these notes are not released due to severe and sensitive issues that will cause direct psychological harm to [the applicant] and harm her relationships.  The nature of the notes are not appropriate or reasonable to release.

The release of these therapy notes could potentially cause significant harm to [the applicant’s] mental health and well-being.  The therapeutic relationship is built on trust and confidentiality, and the disclosure of these sensitive notes could not only damage this trust but also severely impact on [the applicant’s] progress and mental health stability.  Such exposure might exacerbate her psychological distress, potentially leading to worsening symptoms and impeding her recovery progress.

I understand the legal importance of the subpoena and have released confidential notes previously without concern; however, the primary concern must be the best interests of the minor.  Revealing these notes might strain her family relationships further and cause her considerable emotional and psychological harm.  The sensitive nature of the information contained in the notes necessitates careful consideration of the potential adverse effects on [the applicant].

I am fully prepared to present myself in court to discuss the potential dangers of releasing these notes in more detail and to answer any questions Your Honour may have regarding this matter.  My ultimate goal is to ensure that [the applicant] receives the protection and care she needs during this vulnerable time.  Particularly as the information may pertain to sexual abuse/harassment towards a minor and other very sensitive and confidential information.  I am already personally observing the distress from [the applicant] at the thought of these notes being released to anyone outside of myself.”

2^nd hearing – 15 July 2024

47. [47]
    The parties appeared again before Judge Long for the second stage of the hearing of the first respondent’s application.  The applicant, again with standing to appear as the counselled person, was then represented by senior and junior counsel.  The counsellor was also present in court on this occasion and appeared on her own behalf.
48. [48]
    In response to questions from the judge at the commencement of the hearing, the counsellor confirmed that she had not complied with the subpoena.
49. [49]
    When asked how the matter should then proceed, counsel for the first respondent submitted that there ought to be compliance with the orders made on 24 May, noting that there had been no application made by the counsellor to set aside the subpoena.  Counsel further submitted that the matters raised by the counsellor in her letter to the court were matters that the court would be dealing with “as part of the more substantive application to deal with the counselling records” and there was no legitimate reason why the counsellor should not comply with the subpoena.
50. [50]
    In advance of the hearing, counsel for the applicant had provided written submissions, which foreshadowed a challenge to the previous orders made by the judge at the first hearing.  By those submissions, the applicant sought an order vacating the order of 24 May 2024 and a further order under s 14H(2A) of the Act for the production to the court of the counsellor’s records in relation to the applicant, between 1 June 2022 and 2 December 2022, with leave for the counselled person to inspect those records.
51. [51]
    When asked at the hearing to clarify the applicant’s position, senior counsel for the applicant said:

“…it’s our submission that in order to be satisfied of any of the matters in section 14F, including for the purpose of grating [sic. granting] leave to subpoena to inspect documents, the court needs to be informed of the actual contents of the protected counselling communications, and so far, that hasn’t happened.

…that follows from the text of 14H of the Evidence Act, which requires the court to be satisfied that the material will have substantial probative value.”

52. [52]
    Thereafter, the hearing essentially proceeded as an application by the counselled person and the counsellor to set aside the order made on 24 May 2024 granting leave for the issue of a subpoena and an alternative further application by the counsellor to narrow the terms of the subpoena.
53. [53]
    The further submissions on behalf of the applicant were to the following effect:

    1. Section 14H imposes stringent requirements of which the court must be satisfied, including that the PCC has “substantial probative value”;
    2. In its original form, the SACP provisions created a paradox for a court deciding an application for leave.  How could a court be satisfied of the matters required by s 14H on an application for leave if leave was first required before the PCC can be produced to the court?;
    3. The position has since been rectified by the introduction of ss 14H(2A) and 14H(2B).  Applications for leave no longer need to be decided on inferences about the probable content of the PCC, its probative value or the public interest in it being admitted into evidence outweighing any harm to the counselled person;
    4. The court can be satisfied of those matters in the definitive way required by the text of s 14H by informing itself, either by its own inspection or from assistance provided to it by the counselled person or counsellor, of the actual, as opposed to probable, contents of the PCC;
    5. While s 14H(2A) confers an unfettered discretion on the court, the exercise of that discretion is to be guided by the subject matter, scope and purpose of the section.  It is thus appropriate to exercise the discretion by weighing the extent to which its exercise is necessary for deciding an application for leave against the objects of the legislative scheme as a whole in seeking to protect the confidentiality of the PCC;
    6. Unfortunately, the submissions made on behalf of the counselled person on 24 May 2024 “reflect the mindset that existed prior to the amendments to the Act”. They conceded that the PCC in this case “may” have substantial probative value, essentially on the basis of the probable content of the PCC. However, s 14H requires that the court be satisfied that the PCC “will have” substantial probative value and that the public interest in admitting it into evidence will outweigh the harm to the counselled person;
    7. Notwithstanding the past concessions made on behalf of the applicant, it remains for the court to be satisfied of the matters required by s 14H.  The concessions could not, by themselves, satisfy the court of the s 14H matters, unless and until they have been informed by knowledge of the actual contents of the PCC;
    8. In those circumstances, and where the counsellor was also objecting to the subpoena, the court should make the orders sought to vacate the 24 May 2024 orders and make an order for the production of the counselling records under s 14H(2A), with leave for the counselled person to inspect those records.
54. [54]
    During oral submissions, senior counsel for the applicant submitted that whether or not the court was satisfied of the matters in s 14H was a jurisdictional fact which must exist in order for the court’s power to grant leave to be exercised.  Senior counsel accepted that it would not be necessary in every case for the court to exercise the powers in s 14H(2A) for it to be satisfied of the s 14H(1) matters, acknowledging that there might be cases where it was obvious on the face of other material before the court that the documents containing PCCs the subject of the application will not have substantial probative value.  However, in other instances, where there was a “serious prospect” that the documents containing the PCC will have substantial probative value, he submitted that the court should be informed in some way of the actual contents of the documents so that it could determine whether it was satisfied of the matters in s 14H(1).  Senior counsel submitted that this was such a case where the court needed to consider the document before the court could reach the required degree of satisfaction to grant leave to subpoena or inspect the counsellor’s records.
55. [55]
    Counsel for the second respondent deferred to the submissions made on behalf of the applicant as the counselled person.  He accepted the applicant’s argument had persuasive force but submitted that the court’s exercise of powers under s 14H(2A) to determine a leave application provided an ideal, but not universal, mechanism.  He further submitted those powers were not necessarily to be adopted in every case, adding that there may be rare situations where it is so clear, and universally accepted, that the material will be of strong probative value that the court will not be required to consider the material.
56. [56]
    Counsel for the first respondent submitted that there was no basis to vacate the orders made on 24 May 2024.  He submitted that it was not mandatory that the court proceed under s 14H(2A) in every case; that the wording of s 14H(1)(a) supported the approach taken by the judge at the first hearing and that the court could be satisfied that the subject documents containing the PCCs will have substantial probative value without reference to the actual contents of those documents; and that different considerations, with different criteria and force, applied according to the stage at which the court was considering the question of leave, such as when the court was considering whether to grant leave for a subpoena to issue as opposed to whether to grant leave to access and inspect documents containing PCCs produced in response to such a subpoena.
57. [57]
    In reply, senior counsel for the applicant submitted that the statutory language of s 14H was to be given the same meaning regardless of the circumstances in which it was to be applied.  Accordingly, he submitted, the requirements for substantial probative value and balancing of the public interests imposed the same high threshold at every stage of an application for leave process.
58. [58]
    For her part, the counsellor confirmed that she wanted the judge to read and consider her email letter to the court, dated 6 June 2024.  Whilst noting it was not in proper evidentiary form, in the absence of any objection the judge marked the letter for identification and said he would have regard to it.  The counsellor then further informed the judge:

“The information that’s in the notes are not pertaining to the [first respondent’s] case, so to speak. The information that was reported to the police encompasses everything. The other parts of the notes are severely detrimental to the minor and relate to things completely unrelated to the case and would severely harm that minor and her family and the relationship that we’ve built over the years, and it’s very sensitive and leaves her in a very vulnerable position. So I would love to see certain information redacted, or her support people to have that first and pass on what is helpful to the case, if possible, your Honour.”

59. [59]
    As later became apparent, it was this statement made by the counsellor that the judge treated as an effective application to narrow the scope of the subpoena.
60. [60]
    At the conclusion of the hearing the judge reserved his decision and ordered that the counsellor was excused from compliance with the subpoena until further order.

The judge’s decision on the 15 July applications

61. [61]
    Judgment was delivered on 5 November 2024.^[4]  The judge dismissed each of the applications to vacate the order made at the first hearing and dismissed the counsellor’s effective application to narrow the terms of the subpoena. 
62. [62]
    In his reasons, the judge noted that the orders made on 24 May 2024 reflected the common position of each of the parties and the counselled person and where the counselled person had conceded, in written submissions, that the court might make an order granting leave to issue the subpoena to the counsellor;^[5] but that by the second hearing on 15 July 2024 the counselled person had changed her position, so as to then argue that the court could not allow an application for leave to do any of the things otherwise prohibited by s 14F of the Act unless the court exercised powers under s 14H(2A) of the Act to order the relevant documents to be produced to the court so that the court could consider their actual contents.^[6]
63. [63]
    The judge then set out the relevant statutory framework of the SACP provisions.  His Honour noted that the determination of any application for leave ultimately required the application of a form of balancing exercise involving competing public interests, as provided by s 14H(1)(c); that the statutory test was heavily weighted in favour of the statutorily recognised public interest in “preserving the confidentiality of the communication and protecting the counselled person from harm”; and that ss 14H(1)(a) and (b) provided two preconditions for the balancing exercise, of which the court must first be satisfied.^[7]  His Honour further noted that whilst the ultimate application of the test in s 14H was directed at the admission of a PCC into evidence in the proceeding, it was equally made applicable to a number of steps which may be necessary in order that any such admission into evidence might occur, such as a first step involving an application for leave to subpoena such material followed by further steps involving applications for access to the material and use of the material.^[8]
64. [64]
    With respect to the enactment of ss 14H(2A) and (2B), the judge concluded that those provisions were introduced to provide “some further assimilation” of the Queensland legislative scheme to the New South Wales legislative scheme, as found in s 299B(1) and (3) of the Criminal Procedure Act 1986 (NSW); that s 14H(2A) was expressly couched in permissive terms and was discretionary rather than mandatory; and that there was no basis for the contention made by the counselled person that in determining an application for leave pursuant to s 14F, including an application for leave to subpoena PCC, that a court, before granting such leave, was required to inspect that material.^[9]
65. [65]
    The judge observed that there was some superficial attraction to the applicant’s argument, in that it was not difficult to envisage how some such applications might be appropriately dismissed without any reference to the PCC in issue.  However, his Honour considered that was only because of an implicit acceptance as to the necessity for an application seeking access to PCC, such as where it commenced as an application for leave to subpoena such material, to be made and considered, at least in the first instance, without reference to the material to which access was sought.^[10]
66. [66]
    The judge further noted that the applicant’s contention, that the addition of the express power in s 14H(2A) allowing for the production of PCC material to a court for its consideration meant that this must occur before any such leave application may be allowed, sought to depart from the accepted interpretation of the concept that the material “will … have substantial probative value”, as required by s 14H(1)(a).^[11]
67. [67]
    The judge then stated:^[12]

“It is a criterion which may be satisfied upon a high degree of expectation as to the probative value of the material, rather than in requiring absolute certainty as to that conclusion, as might have been the consequence of a requirement expressed in terms that the PCC ‘has substantial probative value’.^[13] Moreover the concern must necessarily be with the expected capacity of that material to have substantial probative value, rather than in any performance of the role of the ultimate arbiter of facts in terms of what effect it actually has.

Necessarily and particularly where most applications for access to PCC will have to begin by application for leave to subpoena the material, this criterion is expressed in a prospective sense and the approach which has been identified is consistent with that identified in respect of the approach to the application of the consideration expressed in s 12(2)(c) of the Penalties and Sentences Act 1991, in respect of an exercise of discretion as to whether or not to order that a conviction be recorded for a criminal offence. In R v Cay Gersh and Schell; ex parte A-G (Qld), it was observed:

‘Section 12(2)(c) speaks of the impact a conviction “will” have on the offender’s economic or social wellbeing or chances of finding employment. This involves an element of predicting the future. Ordinarily, the word “will” in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender’s life would be impacted on by the recording of a conviction.’”

68. [68]
    The judge determined that no different conclusion was required by the conjunction of the determination as to substantial probative value under s 14H(1)(a) with the balancing exercise required by s 14H(1)(c), relevantly reasoning:^[14]

“…That balancing exercise is capable of being performed once the substantial probative value of the PCC is sufficiently identified as a matter of expectation, as is demonstrated by the analysis undertaken in R v TJ and adapted to the circumstances of this case, upon identification of the clear expectation that the material will pertain to the necessarily important issue as to the emergence of the allegations brought against the defendant and therefore as to how and when such critical preliminary complaint was made and where, axiomatically, there is no other evidence available concerning the matter.”

69. [69]
    The judge rejected the applicant’s submissions that s 14H(2A) provided “an unfettered and wide-ranging power sufficient to efficiently deal with applications for leave associated with protected counselling communications” and was not to be “sparingly exercised”, concluding that such an approach was contrary to the undoubted purposes of the legislative scheme which otherwise provided for exemptions from the strictures otherwise placed on access to and use of PCCs in connection with the proceedings,^[15] and contrary to Applegarth J’s conclusion in TRKJ that the implied power of the court to inspect documents containing PCC was for “sparing” rather than routine or regular use.^[16]
70. [70]
    The judge also rejected the applicant’s submission that the addition of s 14H(2B) supported her argument in respect of s 14H(2A), concluding that it instead served to make clear the effect of s 14F, in denying disclosure of the subject PCC material to the parties before the leave application in question was decided.^[17]  His Honour emphasised that the inclusion of s 14H(2B) certainly did not mean that an application for leave pursuant to s 14F was to be turned into one to be determined by the court with the particular assistance of the counselled person, largely to the exclusion of the parties to the proceeding.^[18]
71. [71]
    The judge ultimately concluded that the order made on 24 May 2024, granting leave to issue and serve the subpoena on the counsellor, had not been demonstrated to have been invalidly made.^[19]
72. [72]
    With respect to the counsellor’s application to narrow the scope of the subpoena, the judge noted that the effect of the counsellor’s objection was that not all material which would be produced in answer to the subpoena would relate to or refer to interactions of the applicant and the first respondent.^[20]  After discussing several apparent difficulties and unwarranted assumptions in the counsellor’s objection, the judge noted that whilst it was the disclosures about the alleged offences which will constitute the preliminary complaint evidence, it was necessary to understand that, under s 94A of the Act,^[21] at least in so far as the alleged sexual offences were concerned, what is identified as relevant and admissible is “evidence of how and when” such disclosures were made.  Accordingly, the judge reasoned, the context of the disclosure would also be of relevant importance so that the jury would have the necessary evidence for determination as to whether the circumstances of the disclosures tell for or against the credibility of the complainant’s evidence.^[22]
73. [73]
    In those circumstances, the judge concluded that the bare contention raised by the counsellor as to the breadth of the subpoena was not made out; and that it was appropriate for all the records of her interactions with the applicant, up until her first formal statement to police, to at least be brought into the control of the court.^[23]  Whilst the judge further observed that it might be the case that the court’s conclusion that the s 14H(1) criteria were satisfied in respect of the application for leave to issue the subpoena was also sufficient to warrant leave now being granted to the legal representatives of the parties to inspect the documents for the purposes of determining the use application, his Honour nevertheless determined that the parties should have an opportunity to be heard as to whether it was appropriate for the court to consider them once they were produced to the court, before allowing the parties leave to inspect them.

Submissions as to jurisdictional error

74. [74]
    The applicant challenges the judge’s 24 May 2024 order granting leave to the legal representatives of the first respondent to issue a subpoena for the counselling records held by the counsellor; and the judge’s subsequent 5 November 2024 order dismissing her application to set aside that order.  The applicant claims each of the judge’s orders are affected by jurisdictional error for two reasons:

    1. First, the judge misconstrued s 14H of the Act and thereby misapprehended the nature of, and limits on, the court’s powers.  The applicant says the judge did so by erroneously regarding the requirements for a grant of leave in respect of PCCs, in particular that a court could be satisfied that communications will have substantial probative value and that the public interest in admitting the communications into evidence substantially outweighs the countervailing public interest considerations in s 14H(1)(c), as capable of satisfaction without the court first ascertaining the actual content of the communications; and
    2. Second, the judge misconstrued s 14H(1)(a) by equating the requirement that the PCC “will have substantial probative value” with a “high degree of expectation” as to the probative value of the material.
75. [75]
    The applicant submits that the alleged errors by the judge amount to jurisdictional error, as the requirements in s 14H of the Act are a condition precedent to the power of a court to grant leave for the purposes of s 14F of the Act.  The applicant says that each of the alleged jurisdictional errors are in effect “two sides of the same coin”, as each alleges that the judge could not rationally have been satisfied that the subject PCC material will have substantial probative value to the extent required by the legislation in circumstances where the court had not considered the actual contents of the PCC.
76. [76]
    Although she acknowledges the concessions made at the hearing on 24 May 2024, to the effect that the court did not need to act under s 14H(2A) to order production of the documents and that it could be satisfied that the material will have substantial probative value, she nevertheless says her concessions cannot overcome jurisdictional error by the judge.
77. [77]
    In one small departure from the submissions that were made in the District Court, the applicant accepted that there might be cases where the court could be satisfied of the s 14H matters required for a grant of leave without requiring production and consideration of the subject documents under s 14H(2A).
78. [78]
    The applicant submits that in light of s 14H(2A), there is no longer any justification for the view that the ordinary meaning of the phrase in s 14H(1)(a), “will…have substantial probative value”, should not be adopted.  She says that the words are definitive and not speculative and do not admit of even a question of probability and for that reason the court cannot reach the necessary level of satisfaction to grant leave without knowing the content of the PCC.
79. [79]
    Whilst acknowledging that the counsellor’s letter of objection was not evidence, the applicant says it nonetheless illustrates the error in the judge’s reasoning and approach to s 14H.  She further says that as s 14H must be satisfied for all PCCs the subject of an application for leave, the judge could not rationally have been satisfied that all the counselling records for the six month period from 1 June to 2 December 2022 “will have substantial probative value” in the proceedings against the first respondent, much less that the public interest in admitting all the records into evidence “substantially outweighs” the public interest in preserving the confidentiality of the PCCs and protecting the counselled person from harm.
80. [80]
    The applicant submits the judge’s erroneous approach to s 14H of the Act is further demonstrated by his Honour’s suggestion that leave to inspect the material might be granted to the legal representatives of the parties to enable “the further and precise determination, to the extent that it may be necessary, of the further question as to leave to ‘adduce evidence or otherwise use’ such PCC.”^[24]  The applicant argues that no such leave ought to be necessary if a court is satisfied of the requirements in s 14H.

Consideration

81. [81]
    There is no doubt that upon an application for review this Court may grant relief of the kind sought here where an order of an inferior court is shown to have been affected by jurisdictional error.
82. [82]
    In MH v HJ, Cooper J dealt with a similar application seeking an order in the nature of certiorari to quash an order made by the District Court in an application for leave to access records containing PCC on the basis of jurisdictional error.  In a summary of legal principle that I gratefully adopt, his Honour stated: ^[25]

“Whether an error of law by an inferior court is jurisdictional will depend on the proper construction of the statute which confers jurisdiction.  Where the statute is expressed in terms that a court take a specified matter into account before making an order the question of construction is whether the statute makes the taking of the matter into account a condition of the authority which the statute confers on the court to make an order of that kind.

An inferior court falls into jurisdictional error if it misapprehends the nature or limits of its functions or power in a case where it correctly recognises that jurisdiction exists.  This may occur where an inferior court—while acting wholly within the general area of its jurisdiction—does something which it lacks authority to do, including where the inferior court misconstrues the statute conferring jurisdiction and thereby misconceives the extent of its powers in the circumstances of the particular case.

… s 14H makes satisfaction as to the matters prescribed in s 14H(1)(a)–(c), on the part of the court hearing an application for leave, a condition of the authority which the Act confers on the court to grant leave to inspect PCC material.”

83. [83]
    Cooper J ultimately held that the District Court judge had misapprehended the limits on the court’s power and misconstrued s 14H of the Act, constituting jurisdictional error.  I accept that the same conclusion would follow here if the applicant were to demonstrate that the judge misapprehended or misconstrued the same provision in the manner for which she contends.
84. [84]
    To the above analysis, I would further note that where legislation requires a person to be satisfied of a specified matter as a condition precedent to the exercise of a relevant power, the person being so satisfied is a jurisdictional fact upon which the exercise of the power is conditioned.^[26]  For the purposes of an application for leave under s 14G of the Act, I consider satisfaction of the matters in s 14H(1)(a) to (c) are jurisdictional facts that must be established before the court may grant leave.  Here, the applicant’s case is that because the judge misapprehended the limits on the court’s power or misconstrued the phrase “will have substantial probative value” in s 14H(1)(a) he was not, and could not have been, satisfied of a jurisdictional fact and therefore the order granting leave for the issue of the subpoena was affected by jurisdictional error.
85. [85]
    Although the applicant seeks to have quashed, or declared to be of no force or effect, orders made by the judge on different dates, it will ultimately be necessary for the applicant to show that the 24 May 2024 order, granting leave to issue the subpoena for the counselling notes, was vitiated by jurisdictional error.  If that is demonstrated, then it would follow that any subsequent orders made by the judge were affected by the same jurisdictional error.  While the applicant relies upon supposed errors disclosed by the judge’s 5 November 2024 judgment, I proceed on the basis that the judge’s reasons on that occasion also indicate the basis upon which his Honour was satisfied of the s 14H criteria in the first hearing.
86. [86]
    The various arguments put by the applicant all ultimately concern the proper construction of s 14H, especially what must be demonstrated to satisfy the test in s 14H(1)(a) that a PCC “will…have substantial probative value”.
87. [87]
    The modern approach to statutory interpretation is well understood.  As the plurality stated in SZTAL v Minister for Immigration and Border Protection:^[27]

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.  Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”

88. [88]
    Accordingly, s 14H must be considered in its statutory context and with regard to the legislative purpose of the provision and the SACP provisions as a whole.  I have already referred generally to the SACP provisions of Part 2, Division 2A of the Act; the definition of PCC in s 14A; the qualified privilege established by s 14F; and the requirement to obtain leave of the court under s 14G to do any one or more of the things otherwise prohibited by s 14F.  As noted, the court cannot grant an application for leave unless it is satisfied of the matters in s 14H.
89. [89]
    It is evident that the related principal purposes of the legislative scheme created by the SACP provisions of the Act are to encourage victims of sexual assault offences to seek counselling and to protect such victims from the harm that might eventuate if matters disclosed or discussed by them in counselling are revealed and able to be used as evidence in a criminal proceeding.  Those purposes are achieved through the qualified privilege that applies in respect of a PCC (s 14F), whereby the confidentiality and privacy of a PCC is safeguarded, subject to leave being granted in accordance with a strict statutory test (s 14H).  That test is weighted heavily in favour of preserving the confidentiality of the PCC and protecting the counselled person from harm but “seeks to ensure the appropriate balance in each case between the right to a fair trial and the public interest in preserving the confidentiality of counselling communications”.^[28]
90. [90]
    The qualified privilege applies in all cases and to all parties, so that the Crown and an accused person are equally prohibited from doing any of the things proscribed by s 14F in respect of a PCC, unless leave of the court is first obtained.  Depending on the nature of the case, the form and provenance of the PCC in question, the stage of the proceeding and the use sought to be made of the PCC, an applicant may need to seek leave to do any one or more of the proscribed things with the PCC in connection with the proceeding.
91. [91]
    Of course, obtaining leave to produce, inspect, access or otherwise use a PCC is only a means to a particular end.  As s 14H(1)(c) makes plain, the ultimate issue with respect to the use to be made of a PCC is whether it ought to be admitted into evidence.  A court deciding an application for leave must therefore consider the evidentiary use that is to be made of the PCC.
92. [92]
    In a case such as the present, where it is said the PCCs will have substantial probative value because they will allow a jury to understand the circumstances in which the complaint against the first respondent emerged, it would not ordinarily be the case that the counselling records would themselves be tendered and received as evidence in a trial.  That will be particularly so in this case where the Crown confirmed at the first hearing that it has not obtained a statement from the counsellor and indicated that it does not intend to call her as a witness at trial.  Rather, if the documents and their contents became available and known to the parties through the leave process, then, with the court’s leave, the parties may use the information gleaned from those documents to adduce evidence from a witness at the trial.  Such evidence, to the extent that it discloses a PCC, would come within the meaning of a PCC in s 14A(4)(b).  For example, the Crown might seek to lead evidence from the complainant, in further evidence in chief, additional to her s 93A statement, about her making the disclosures to the counsellor before making her first formal complaint to police.  If the counsellor was called as a witness, similar evidence might be led from her.  Such evidence would be relevant and admissible as preliminary complaint evidence.  If the complainant’s earlier account was logical and consistent with her formal complaint, that might lead a jury to conclude that she was a credible witness.  Conversely, the defence might seek to cross-examine the complainant about the same circumstances, highlighting any supposed inconsistencies in her accounts and the circumstances in which her complaint emerged, to undermine her credibility.  Such evidence is commonplace in a trial involving sexual offences where a complainant has made a preliminary complaint, regardless of to whom, or how, the preliminary complaint was made.  On either basis, a court might well be satisfied that the subject PCCs will have substantial probative value and the public interest in admitting the communication into evidence substantially outweighs the competing public interests in s 14H(1)(c)(i) and (ii).
93. [93]
    It is in this context that a textual analysis of the language employed in s 14H is to be undertaken.

The PCC “the subject of the application”

94. [94]
    Section 14H expressly states that leave can only be granted if the court is satisfied of each of the matters in s 14H(1)(a) to (c).  It is implicit that an applicant for leave necessarily bears the onus of satisfying the court of the statutory criteria.
95. [95]
    The language of s 14H(1)(a) makes plain that the court must be satisfied that the PCC “the subject of the application” will have substantial probative value.  The use of that phrase indicates the necessity for an applicant to specify the PCC in respect of which leave is sought and for the court to assess the probative value of that particular PCC.
96. [96]
    Where, as here, application is made under s 14G of the Act for leave to issue a subpoena, it will commonly be the case that the proposed subpoena will not simply seek production of a single PCC.  As is usually the case with any subpoena for the production of documents, what will be sought is the production of documents of a particular kind that are, or are believed to be, in the possession of another person.  Unless something more is known about a particular document or documents believed to be in the possession of the other person, the subpoena will contain a schedule describing the subject documents with sufficient particularity as to whom or what they relate, their date range and their subject matter and type, to enable compliance with the subpoena and the production of relevant documents.  Here, for example, leave was granted to subpoena “records pertaining to [the applicant] between 1 June 2022 and 2 December 2022” held by the counsellor.  The description “records” is of course much broader than a PCC.  Not every document that would be produced in answer to a subpoena drafted in these terms would be expected to be a document containing a PCC.  The records held by the counsellor would inevitably include documents recording other information, such as the general personal or medical details of the applicant, or other administrative documents, such as referral letters or billing and appointment information.  Of course, save for the fact that the description will inevitably capture PCCs, leave would not otherwise be required to issue a subpoena for such other “records”.  In practice however, leave is sought to issue a subpoena, pursuant to which documents containing PCCs will be produced to the court as part of the category of documents of which production is compelled by the subpoena.
97. [97]
    The definition of PCC in s 14A is of course to be read with s 14H.  Although ss 14A and 14H refer in singular terms to “a” PCC and “the PCC” respectively, those terms necessarily include the plural, “PCCs”.^[29]  I see nothing in the Act to indicate a contrary intention to displace singular references to a PCC as including the plural term, PCCs.^[30]  Such an interpretation is consistent with the language and context of s 14H and would promote the legislative scheme.  In many cases, including the present case, where leave is sought to subpoena counselling records it is likely there will be more than one PCC that is the subject of the application for leave.  Where that is so, each individual document containing a PCC will together comprise “the PCCs the subject of the application”.
98. [98]
    By s 14H(1)(a), the court can not grant leave unless it is satisfied that the PCC the subject of the application will, “by itself or having regard to other documents or evidence produced or adduced by the applicant” have substantial probative value.  The words “by itself” suggest that the court might be so satisfied having regard solely to the contents of the subject PCC.  That might occur in a case where the court considers the PCC in accordance with s 14H(2A).  However, in my view, the terms of the subsection make clear that there is no requirement for the court to consider the actual contents of the subject PCC before it may be satisfied that the PCC will have substantial probative value.  Employing the conjunction “or” the subsection expressly provides that the court may make the necessary assessment “having regard to other documents or evidence”.  In such instances, the court may be satisfied that the subject PCC will have substantial probative value on the basis of reasonable inferences or conclusions that may be drawn from the known circumstances of the case and the other material before the court.
99. [99]
    As Beech-Jones J observed in KS v Veitch (No 2) (2012) 84 NSWLR 172 in respect of the apparent difficulties for an applicant seeking leave to issue a subpoena or other compulsive process under s 299D of the Criminal Procedure Act 1986 (NSW), the analogue of s 14H of the Act, where neither an applicant nor the court could first inspect the subject documents:^[31]

“…the apparently high threshold presented by the criteria in s 299D may not be as difficult to overcome as first appears if the relevant application was supported by evidence identifying the accused's defence to the relevant allegation, what the accused expects will be obtained from the material sought to be produced or inspected and what other documents or evidence are or are not available relating to those issues and the material sought. That is not to say that those matters must be deposed to before such an application will be granted but, as a practical matter, if they were an application for leave would appear to have a greater chance of success.”

100. [100]
     In a similar vein, in TRKJ, Applegarth J held:^[32]

“I do not agree that the Court could not be satisfied of the requirements of s 14H without viewing those documents, so that viewing the documents is mandatory. Depending on the evidence and submissions, the conditions may be satisfied by extrinsic evidence and inferences about what the counselled person said to the counsellor.”

101. [101]
     Where, as was done here, leave is sought to issue a subpoena to produce the records of a counsellor in respect of a complainant, the court is quite properly invited to draw a series of inferences.  First, an applicant asks the court to conclude that the party to be subpoenaed will hold such documents.  In a case like this, where other material before the court made plain that the complainant had seen a counsellor for at least six months, it is inevitable that such records will exist and will be in the possession of the counsellor.  It could not reasonably be supposed that a psychologist providing professional counselling services to a client over an extended period of time would not make and keep records of the client’s initial and ongoing presentation and circumstances and the matters discussed during counselling sessions.  Next, an applicant asks the court to infer that those records will include documents containing PCCs.  Again, in circumstances where it is known by the court in the present case that the complainant was receiving counselling during the period of the alleged offending, and where the counsellor contacted police on the basis of what had been disclosed to her by the complainant during counselling sessions, there can be no doubt that the records will include documents containing PCCs.  Finally, an applicant invites the court to conclude that the subject PCCs recorded in those documents will have substantial probative value.  As previously discussed, the judge here drew that inference based on what his Honour concluded would be expected to be contained in the records.
102. [102]
     In my view, s 14H clearly permits the court to decide an application for leave in this way.  However, it is to be borne steadily in mind that the court can only grant leave if it is satisfied that the PCCs “will…have substantial probative value”.

Substantial probative value

103. [103]
     The Act does not define the phrase “substantial probative value”.  The words ought to therefore be given their ordinary meaning in their statutory context.
104. [104]
     When considering s 14H of the Act in R v JML,^[33] Fantin DCJ noted that dictionary meanings of “probative” included affording proof or evidence or tending to prove; that at common law evidence was probative or had probative force if it increased or diminished the probability of a fact in issue; and that in order for evidence to be probative, it must render a fact in issue more probable that it would be without the evidence.  Her Honour then stated:

“That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact could rationally affect the assessment of the probabilities. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the Jury’s assessment of the probability of the existence of a fact in issue at the trial. There must be a logical connection between the evidence and the fact in issue.”

105. [105]
     Judge Fantin then provided the following analysis of the phrase, “substantial probative value” within s 14H(1)(a):

“The ‘substantial probative value’ test is more exacting than the ‘legitimate forensic purpose’ test that normally applies to an application for a subpoena…

‘Substantial’ is a word that may have different meanings, depending on the context. The requirement that the protected counselling communication must have ‘substantial probative value’ should be construed in a way that best achieves the purpose of the legislative scheme. In my view, in the context in which that expression is used, the adjective ‘substantial’ connotes very important, ample or considerable. ‘Substantial probative value’ requires a higher standard of relevance than significant probative value, which itself connotes something more than mere relevance.”^[34]

106. [106]
     In TRKJ, Applegarth J adopted what Fantin DCJ had said about the meaning of “probative” and that the question of whether evidence is probative and has “substantial probative value” for the purposes of s 14H of the Act can be determined only by an analysis of the facts in issue in the proceeding.^[35]  His Honour also agreed with Fantin DCJ’s conclusion that the word “substantial” indicates that it is not sufficient if the communication has some probative value or will provide some legitimate forensic advantage.^[36]  Perhaps it was because the issues in the case did not require the matter to be further considered, but it is notable that Applegarth J did not go on to further consider or endorse Judge Fantin’s analysis of the meaning of the phrase “substantial probative value”.
107. [107]
     In R v TJ,^[37] Judge Long SC, when considering the same phrase, made the point that in TRKJ Applegarth J had not endorsed that further aspect of Judge Fantin’s analysis in JML, then stated:^[38]

“…For my part, I am hesitant to adopt the particular meaning of “substantial” identified in JML, as appropriate and it suffices, in terms of the observations in TRKJ, to note that the determination will be upon the basis that what is required is more than a determination that the ‘communication has some probative value or will provide some legitimate forensic advantage’.”

108. [108]
     After identifying various dictionary definitions of the word “substantial”, which his Honour considered confirmed the possibility of many different shades of meaning, Judge Long SC then stated:^[39]

“The difficulty in attempting to prescribe anything more than a sense of minimal requirement, is in begging a question as to what degree of qualification, in terms of importance or amount or ampleness or size or worth, will suffice and the prospect of variable application of a standard. It is to be noted that the same word is used in s 14H(1)(c), in qualification of the balance to be achieved and there is an evident difficulty of introducing an ill-defined concept of degree, unless the concept is in describing a minimal position, such as being real and actual or of real worth or value, as opposed to being merely arguably or barely established…

…

In other words the purpose, in each instance, is in providing a test by way of qualification rather than quantification.”

109. [109]
     Subsequently, in R v TRKJ (No 2), Cash QC DCJ noted and concluded:^[40]

“…Courts have grappled with this phrase from an early point. In R v JML Fantin DCJ considered that in the context of this legislation ‘substantial’ connoted ‘very important, ample or considerable’. Her Honour regarded ‘substantial probative value’ as setting a standard higher than ‘legitimate forensic purpose’ or ‘significant probative value’, which was itself more than mere relevance. JML was considered by Judge Long in R v HJJ.^[41] His Honour noted that ‘substantial’ was capable of both quantitative (of ample or considerable size) and qualitative (real worth or value, corporeal) meanings. The view preferred by Judge Long was that ‘substantial’ in the context of this legislation referred to the quality of any probative value carried by the PCC, rather than a quantitative assessment. That is, the test will be satisfied where the judge concludes that the worth of the PCC, in the context of all relevant information, goes beyond mere relevance or having some probative value – it is necessary for the judge to be persuaded the PCC has some real worth or value sufficient to make it substantially probative.”

110. [110]
     I agree with that analysis.  It is in that way that the adjective “substantial” within s 14H(1)(a) operates to indicate the extent or degree of probative value of which the court must be satisfied before leave can be granted.
111. [111]
     I note that the applicant’s submissions on this application did not deal with these differing past analyses of the phrase “substantial probative value”.  It appears that the applicant did not consider it necessary to do so as, on her argument, the critical aspect of s 14H(1)(a) to focus upon in the present context are the words “will…have”.

“Will…have…”

112. [112]
     The applicant’s case is that the words “will…have” are to be interpreted as requiring certainty; and the court can only be assured of that by exercising the powers under s 14H(2A) to require production of the subject documents containing the PCCs, so that the court may consider their contents.
113. [113]
     The extent to which certainty is required by s 14H(1)(a) has also been considered in some of the cases previously cited.
114. [114]
     In JML, Fantin DCJ considered the use of “will” (rather than “may”) connotes future certainty, or at the very least, likelihood, rather than mere possibility.^[42]  I note that Judge Fantin’s view has since been often adopted and applied by District Court judges in determining s 14G leave applications.
115. [115]
     In TRKJ, Applegarth J again partially endorsed Judge’s Fantin’s analysis, stating:^[43]

“As Fantin DCJ observed in R v JML, the use of ‘will’ rather than ‘may’ means that the statutory condition is not satisfied by the mere possibility that the protected counselling communication has a ‘substantial probative value’.”

116. [116]
     In TRKJ (No 2) Cash KC DCJ stated:^[44]

“The terms of s 14H(1)(a) also require the judge to be satisfied that the PCC ‘will have’ substantial probative value. In ordinary English such a phrase might indicate the need for absolute certainty. That cannot be what it means in this legislation, or the test could never be satisfied. Thus, in R v JML, Fantin DCJ considered the phrase connoted ‘future certainty, or at the very least, likelihood, rather than mere possibility’.”

117. [117]
     In my view the use of the words “will…have” in s 14H(1)(a) refers to a future eventuality, occurrence or effect.  Because the future can never be known for certain, it is entirely understandable that this juxtaposition might be conceptualised in terms of likelihood, probability or expectation, in keeping with the ordinary English meaning of the words.  However, I consider it is ultimately unnecessary and unhelpful to analyse the criterion in s 14H(1)(a) in terms of degrees of future certainty or probability.  There is only one answer to the question posed by s 14H(1)(a).  The court is either satisfied that the PCC will have substantial probative value, or it is not.  In context, the combined phrase “will…have substantial probative value” requires that the court must be positively satisfied of the prospective future capacity of the PCC to have substantial probative value, if evidence of it was admitted in the proceeding.  That assessment is to be made by the court at the time the application for leave is made and on the basis of the information and material then known.
118. [118]
     In contrast, where, as here, leave is sought to subpoena documents, and the court does not know or consider the actual contents of the material, an assessment of the likelihood or probability of what is expected to be contained within those documents will necessarily form part of the court’s inquiry and the antecedent reasoning process by which the court may ultimately infer that the documents will contain a PCC that will have substantial probative value.
119. [119]
     I do not consider the ordinary meaning of the phrase “will…have substantial probative value” requires the court to consider the actual content of the PCC.  As I have already explained, even without the court considering the PCC itself, the court may be satisfied of the s 14H(1)(a) criteria by drawing inferences from the other information and material available and known to the court.  A court that proceeds that way may, in an appropriate case, draw reasonable inferences about the expected or likely content of the subject PCC.  To complete the required assessment, the court must then determine whether what it has concluded about the content of the PCC will have substantial probative value in the proceeding.
120. [120]
     Given the foregoing, when viewed in isolation, the judge’s conclusion here in paragraph [50] of his Honour’s 5 November 2024 reasons, that the criterion in s 14H(1)(a) “may be satisfied upon a high degree of expectation as to the probative value of the material, rather than in requiring absolute certainty as to that conclusion” does appear to be wrong.  However, when that statement is considered in the broader context of the judge’s reasons on this point, I do not consider the judge has misconstrued the subsection or misapprehended the nature of, and limits upon, the power he had earlier exercised.  After making the impugned statement, the judge then immediately went on to state, “Moreover the concern must necessarily be with the expected capacity of that material to have substantial probative value, rather than in any performance of the role of the ultimate arbiter of facts in terms of what effect it actually has.”  To my mind, this further statement indicates that the judge was cognisant that the criterion required the court to be presently satisfied that the PCCs expected to be contained within the documents to be subpoenaed will have the requisite prospective substantial probative value in the defendant’s trial.
121. [121]
     To the extent that it identified an element of predicting the future, the analogy the judge drew with the case of R v Cay Gersh and Schell; ex parte A-G (Qld) and a court’s exercise of discretion under s 12(2) of the Penalties and Sentences Act as to whether or not to order that a conviction be recorded for a criminal offence, was sound but in other respects it was inapt.  It would be wrong to construe s 14H(1)(a) of the Act as if it might be satisfied if the court reached a “reasonable degree of confidence” that the subject PCC “will…have substantial probative value”.  However, I do not consider that is what the judge did.
122. [122]
     As the balance of the judge’s reasons indicate, his Honour’s references to matters of “expectation” were directed to the likely content of the material that would be produced pursuant to the subpoena to be issued.  That point was made tolerably clear in paragraph [52] of the judge’s reasons where, with respect to the ultimate balancing exercise to be undertaken under s 14H(1)(c) of the Act, his Honour stated:

“That balancing exercise is capable of being performed once the substantial probative value of the PCC is sufficiently identified as a matter of expectation, as is demonstrated by the analysis undertaken in R v TJ and adapted to the circumstances of this case, upon identification of the clear expectation that the material will pertain to the necessarily important issue as to the emergence of the allegations brought against the defendant and therefore as to how and when such critical preliminary complaint was made and where, axiomatically, there is no other evidence available concerning that matter.”

123. [123]
     It follows that I am not satisfied that the second of the two jurisdictional errors alleged by the applicant has been demonstrated.

Does s 14H(2A) now compel a different approach?

124. [124]
     There is no doubt that s 14H(1)(a) imposes a high threshold and presents significant difficulties for an applicant who seeks leave to compel, whether by subpoena or otherwise, production of documents containing PCCs in a case such as the present.  Section 14H(2A) aside, the section contemplates that an applicant bears the onus of satisfying the court that the documents sought to be subpoenaed will contain PCCs and the PCCs will have substantial probative value, without the court knowing the actual contents of the relevant documents.  On the applicant’s argument, it would rarely be the case that the court could be so satisfied.  It is for that reason that the applicant says the court should therefore exercise the powers under s 14H(2A) to order that the documents be produced to the court, and to then consider them, in order to decide whether their contents contain PCCs that will have substantial probative value.
125. [125]
     I do not accept the applicant’s argument.  In my view there is nothing in the text of s 14H or in its purpose or context that supports it.  The clear words of s 14H(1)(a) permit the court to make the necessary assessment of substantial probative value on the basis of the subject PCC itself or having regard to other documents or evidence produced or adduced by the applicant.  There is no express or implied requirement for the court to consider the actual contents of the PCC.  The introduction of s 14H(2A) does not alter that position and does not necessarily require a court to consider the actual contents in a case where, as the applicant variously suggested in submissions before Judge Long SC, there is a “serious prospect” that the material will have substantial probative value or there is “real possibility, perhaps even probability” that the PCC will be relevant.  Such suggestions put an unnecessary and unwarranted gloss on the statutory language and attempt to impermissibly introduce the idea that the court should in every case first undertake some kind of indeterminate preliminary assessment of the PCC the subject of the application to determine whether to then proceed under s 14H(2A). 
126. [125]
     On this point, I agree with Judge Long SC’s analysis in his Honour’s reasons for refusing the applicant’s 15 July 2024 applications.  Section 14H(2A) is couched in permissive terms.  The use of the word “may” clearly indicates that the court has a discretion to exercise the powers within that subsection in an appropriate case but that it is not mandatory that the court do so in every case.  Had the legislature intended that the court was required to consider the actual contents of the documents in every case, or even in most cases, one would expect Parliament to have used other language, making the court’s obligation plain.  Moreover, as the Explanatory Note to the relevant Bill for the amending legislation clarified, the purpose of introducing s 14H(2A) and giving the court express powers was to put beyond doubt what Applegarth J in TRKJ had considered the court had an implied power to do.  The Explanatory Note said nothing that would gainsay Applegarth J’s observations that the court would use the power sparingly and would not inspect documents containing PCC as a matter of routine.  In my view, his Honour’s observations in that respect remain relevant to the exercise of the powers under s 14H(2A).
127. [127]
     Further, as Judge Long SC also observed, it does seem to me that the approach urged by the applicant would be inconsistent with a fundamental purpose of the legislative scheme.  The legislation prioritises the preservation of the confidentiality of a PCC and seeks to avoid potential harm to a counselled person through disclosure and use of the PCC in connection with the proceeding.  In keeping with that legislative purpose, the SACP provisions appear to be deliberately designed to require an applicant for leave to issue a subpoena to satisfy the court that the subject PCC will have substantial probative value, without themselves having knowledge of, or access to, the actual contents of documents containing the PCC. To invariably require the court to order the production of documents containing PCCs, so that the court may consider the contents of those documents, would tend to undermine its legislative purpose.  That would be so irrespective of whether the parties remained unable to inspect or access the documents at that stage.
128. [128]
     A court contemplating the exercise of the powers in s 14H(2A) in respect of an application for leave under s 14G would no doubt be mindful that it should only do so where it was necessary in the circumstances of the particular case to advance the purposes and objects of the legislative scheme.  One consideration that may well be important in this context is the position taken by the counselled person and whether they invited the court to act under s 14H(2A) in order to consider the PCCs, perhaps with the assistance of the counselled person’s legal representatives.
129. [129]
     In the present case of course, the counselled person made no such submissions when the judge heard the leave application on 24 May.  Rather, she expressly submitted that this was not a case where that court was required to use the powers in s 14H(2A) and conceded that the court could be satisfied that the subject documents would contain PCCs that will have substantial probative value.

Is a staged approach permitted?

130. [130]
     Although s 14G(1) provides that a party to the proceeding may apply for leave, other than providing for three criteria in s 14H(1) of which the court must be satisfied before it can grant leave, nothing within the balance of the SACP provisions of Part 2, Division 2A of the Act stipulates the procedure for the court’s hearing and determination of such an application.  In the District Court, such leave applications usually proceed in a staged way in accordance with a practice direction issued by the court.^[45]  Under that process, a view has sometimes been expressed that different considerations may apply to the court’s assessment of the criteria in ss 14H(1)(a) and (c) at different stages.  That was the effect of some of the submissions made by the first respondent at the second hearing in this case.  For example, where at the first stage leave is sought to issue a subpoena to compel a person to produce documents to the court that are likely to contain PCCs, the court’s consideration of whether the subject PCCs will have substantial probative value may be approached differently than to how it considers the same issues at a later stage, such as where the court is considering whether leave might be granted to inspect the PCCs or to adduce evidence of a PCC.
131. [131]
     Although not definitively saying so, the applicant’s contention is that such an approach is wrong, or at least unnecessary.  I accept that in some cases it may not be necessary to proceed in a staged way to determine different applications, or aspects of a single application, for leave.  I otherwise see no difficulties or legislative impediment to the court deciding leave applications in a staged way.
132. [132]
     I agree with the applicant’s submission that the standard of “will…have substantial probative value” does not vary depending on the nature of the leave sought or the stage at which the court is considering whether to grant it.  But what may change, depending on the stage at which the court considers the particular leave that is sought, is the information or material that the court has to determine the application.  As previously observed, it is the applicant who bears the onus of satisfying the court of the three criteria in s 14H(1).  Although the court may be satisfied of the criterion of substantial probative value under s 14H(1)(a) by considering the PCC itself or by having regard to other evidence produced or adduced by the applicant, such an assessment does not take place in a vacuum.  In addition to these matters, it is obviously necessary for the court to have regard to the nature of the charges against the defendant, their elements, any available defences that will or may be raised, and the likely facts in issue and facts relevant to facts in issue.  The court could not otherwise make a determination as to whether a PCC will have substantial probative value.  The nature, extent and importance of each of these matters may vary as a proceeding progresses, and may thus bear differently upon the court’s assessment of the s 14H(1) criteria at different times.  An applicant for leave at an early stage may not be in a position to produce documents or adduce evidence of a kind that they may have available or wish to rely upon at a later stage.  Similarly, the nature of the case and the issues in dispute will likely be refined and narrowed as a proceeding progresses, which again will affect the court’s assessment of whether it is satisfied that the subject PCC will have substantial probative value.
133. [133]
     All of this again confirms in my mind that it is not necessary for a court to consider the actual contents of a PCC in order to determine a leave application, particularly at an early stage when leave is sought to issue a subpoena to compel production of documents that will likely contain PCCs.  In my view, consistent with the legislation and logic, a court may at that stage determine the matter on the basis of the anticipated trial that is to be had and the material before it and it may draw any reasonable inferences available from that material.  Whether a court is able to be satisfied at that stage that a PCC will have substantial probative value, or that the public interest in admitting the communication into evidence substantially outweighs the other public interest considerations in s 14H(1)(c) cannot be determined in the abstract.  It very much depends on the nature and circumstances of the individual case, what is known about the PCC and what other material the court has available to it to decide the issues.

Are the judge’s orders affected by jurisdictional error?

134. [134]
     Whether the judge was correct to find that the PCCs the subject of the application will have substantial probative value is not an issue with which I am presently concerned.  If his Honour was wrong about that, then he may have erred, but such an error would be one within jurisdiction and would not constitute jurisdictional error.  For the applicant to succeed on the present application, she must demonstrate that without considering the actual contents of the documents containing the PCCs the judge could not rationally have been so satisfied of the s 14H(1) criteria.
135. [135]
     That now brings me to the nub of the applicant’s argument.  That is, without first considering the actual contents of the documents, the judge could not rationally have been satisfied that the documents containing PCCs that would be produced in response to the subpoena will have substantial probative value.
136. [136]
     I reject that argument.  In my opinion, it erroneously proceeds on the basis that the phrase “will…have substantial probative value” required the judge to have certainty as to the contents of the documents that were the subject of the application for leave to issue a subpoena.  As I have already concluded, I do not consider that is, or was, required on the proper construction of s 14H(1)(a).
137. [137]
     In my view, the real flaw in the applicant’s argument and reasoning is to approach that matter as if the judge was required to be satisfied that each individual document containing a PCC will itself have substantial probative value.  While that might be required in another case, in my view it is not required in every case and was not required in this case.  Here the nature of the case and the material provided to the judge to determine the application clearly revealed a logical basis for the judge to be satisfied that the counselling records would contain PCCs that will have substantial probative value.  There was of course no doubt that the records would contain PCCs, even though the precise details of those PCCs was not yet known.  However, to proceed as the judge did involves no impermissible speculation about the contents of individual documents.  In my opinion, at this first stage of the leave application, his Honour was entitled to consider whether the PCCs that would be contained within the counsellor’s records will, as a whole, have substantial probative value.  As I have already noted, the singular references to “a PCC” or “the PCC” must be read as to include the plural.  The judge was therefore required to consider whether the PCCs the subject of the application will have substantial probative value.  In making that assessment, the judge was required to consider the nature and expected content of the PCCs that would inevitably be contained in the documents to be produced if leave were granted and the other information and material then provided and known to the court to decide the application.
138. [138]
     In those circumstances, I see no difficulty with the judge’s conclusion that the substantial probative value that the documents containing PCCs will have is that they would show the circumstances in which the applicant’s complaint against the first respondent emerged, particularly where the counselled person conceded as much.
139. [139]
     While the applicant correctly submits that the concessions made on behalf of the applicant at the first hearing cannot overcome jurisdictional error if that is otherwise shown, the position taken by the counselled person at the first hearing was significant.  The counselled person of course would have been a party to the PCCs the subject of the application.  She had a right of appearance at the hearing of the leave application.  It would have been open at the first hearing for the applicant to raise the issues that she later raised at the second hearing or, in accordance with s 14H(3) of the Act, to put before the court a written or oral statement of the harm that that she would likely suffer if the application was granted.  She did neither.  The absence of any such action by the applicant, and the concessions she made, allowed the judge to more readily draw the necessary inferences and to be satisfied that the documents would contain PCCs that will have substantial probative value.
140. [140]
     The fact that the judge determined that the “use” stage of the application would be dealt with at a later stage after production of the documents pursuant to the subpoena to be issued in accordance with the leave granted also does not demonstrate jurisdictional error.  Although the judge was satisfied of the s 14H(1) criteria for the purposes of granting leave to issue the subpoena, it did not necessarily follow that the same issues would not need to be considered once the documents had been produced to the court.  It was for that reason that the judge made the further orders on 24 May 2024, that the material produced by the counsellor in response to the subpoena was to be provided to the counselled person’s legal representatives and granting them leave to inspect, copy and adduce such material (containing a PCC).  One obvious matter that would require a court to reconsider the s 14H(1) criteria, or at least the balancing of the public interest factors under s 14H(1)(c), would be if the counselled person had produced a written or oral statement outlining the harm she would likely suffer if leave to access or inspect the documents was granted to the first respondent.  Although she did not do so, the counsellor irregularly sought to raise the same concerns on her behalf at the second hearing.
141. [141]
     Had events occurred as contemplated by the original orders made by the judge, it would have been open to the applicant’s legal representatives to submit at the second hearing that the court should next proceed under s 14H(2A)(b) to consider the PCCs produced in order to decide the first respondent’s application for leave to inspect the documents.  As the applicant suggested during submissions made on the present application, that would not necessarily have required the court to inspect the documents itself.  The court could perhaps then make a further order, under s 14H(2A)(c), consistent with the leave already granted, permitting the legal representatives for the counselled person to make submissions to the court about the nature and contents of the documents.

Conclusion

142. [142]
     In my view, the approach taken by the judge in this case was permitted by the legislation.  I do not consider the judge misapprehended the nature of, or limits on, the court’s powers or that the judge misconstrued s 14H.  The judge could rationally be satisfied of the criteria in s 14H(1), including that the PCCs will have substantial probative value, on the state of the material before him and without considering the actual contents of the counsellor’s records.
143. [143]
     Accordingly, in my view, the applicant has not established either of the alleged jurisdictional errors and her application must be dismissed.

Order

144. [144]
     I order that:

1. The application is dismissed.
2. Unless any party seeks to be further heard on the question of costs, pursuant to s 49 of the Judicial Review Act each party is to bear their own costs of the application.