M v L - [1997] 3 NZLR 424

Practice and procedure — Discovery, production and inspection — Two applications, each made by defendants in proceedings brought by plaintiffs seeking exemplary damages for sexual abuse — Whether defendants have the right to inspect notes and records made by a sexual abuse counsellor in the course of a professional counsellor/client relationship with persons who are plaintiffs in the proceedings — Whether the party claiming privilege bears the onus of establishing it — Whether the party maintaining privilege must establish it in clear terms — Whether the plaintiffs had either waived or substantially weakened the claim to confidentiality privilege by making available in the course of discovery a victim impact report, an ACC claim form, medical certificates, statements made to police, certain medical records and a police caption sheet — Whether real issue is competing public interests of protection versus fair trial — Whether in a criminal prosecution brought in the public interest and not under the control of the complainant, sexual experience and disclosure to counsellors is irrelevant to the real issue of consent — Whether in a civil proceeding different issues are explored — Whether common law should be extended — Whether a new category of “medical-type” privilege be accorded to counsellors — Whether the relationship which develops between a sexual abuse counsellor and a sexually abused victim is a special one, built on trust and confidence — Whether protection of confidential information disclosed in situation of trust should prevail over the public interest in favour of a fair trial — Whether to some extent all discovery has an element of “fishing” — Whether balance lies in favour of disclosure — Evidence Amendment Act (No 2) 1980, ss 32 and 35 — Limitation Act 1950, ss 4(7) and 28 — Psychologists Act 1981 — High Court Rules, R 307(1).