Coughlan v Monash Health

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2021 01078

BETWEEN:

BRENDA COUGHLAN	Plaintiff
v
MONASH HEALTH & ORS (according to the attached Schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2025
DATE OF RULING:	20 February 2025
CASE MAY BE CITED AS:	Coughlan v Monash Health & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 52

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PRACTICE AND PROCEDURE —Application pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 — Proposed separate trial to be conducted on the basis of assumed facts — Whether all facts arguable would be before the Court — Whether appropriate to order a preliminary trial on issues of statutory construction that bear on the factual dispute at trial — Murphy v State of Victoria [2014] VSC 363 — Murphy v State of Victoria [2014] VSCA 238 — Hoh v Ying Mui Pty Ltd [2019] VSCA 203 —Vale v Daumeke [2015] VSC 342 — Jacobsonv Ross [1995] 1 VR 337.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P Hamilton	Shine Lawyers
For the First Defendant	B Ihle KC and J Ryan	K&L Gates
For the Second Defendant	M Britbart KC and B House	Carroll & O’Dea Lawyers
For the Third Defendant	P Herzfeld SC and G Gray	Wotton Kearney

Contents

A.. Introduction & Background

A.1 The pleaded case
A.2 What conduct is said to constitute child abuse?

B.. Principles

B.1 The relevant legislative provisions:
B.1.1Limitation of Actions Act
B.1.2LID Act
B.1.3Wrongs Act

C.. Submissions of the parties

D.. Consideration

HER HONOUR:

A Introduction & Background

These reasons deal with the second and third defendants’ summonses filed 9 August 2024 for the trial of separate questions pursuant to rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules).
The plaintiff is presently 81 years old. She brings a claim for personal injury damages against three defendants for events occurring in 1962 and 1963 when she was aged 18 and 19 years old. The circumstances arise out of her pregnancy and the subsequent birth of her child on 25 May 1963. She was unmarried at the time but pleads she intended to raise her child with the child’s father whom she intended to marry. The plaintiff’s child (the baby) was adopted after birth.[1]
[1]At the request and by consent of the parties, and out of an abundance of caution given the requirements in the Adoption Act 1984 (Vic), the plaintiff’s adopted child is not named.
The first defendant, Monash Health, is the successor in law to Queen Victoria Memorial Hospital (the hospital) where the plaintiff received pre- and post-natal medical care and delivered her baby. The second defendant, the Sisters of St Joseph, operated the St Joseph’s Foundling Hospital (St Joseph’s) in Broadmeadows during 1963. The baby was taken from the hospital and placed there between 4 June 1963 and 10 July 1963 and then placed with adoptive parents. The named second defendant is sued pursuant to s 7(2) of the Legal Identity of Defendants (Organisational Child Abuse) Act2018 (Vic) (LID Act). The third defendant, the Catholic Archdiocese of Melbourne (the Archdiocese), operated the Catholic Family Welfare Bureau (the Bureau) during 1962 and 1963. The Bureau was an adoption agency under the control of the Archdiocese. In broad terms, the plaintiff alleges that the second and third defendants were involved in, assisted, arranged and worked together to facilitate the removal of babies, including this baby, from their birth mothers in conjunction with each other and the hospital.[2] She alleges that the defendants acted against her express wishes and that any consent was vitiated by their conduct.
[2]Plaintiff, ‘Further Amended Statement of Claim’ filed 16 April 2024 in Coughlan v Monash Health, S ECI 2021 01078, [184], [242–243] (‘further amended statement of claim’). For the purpose of this ruling, when any document is referred to as ‘filed’, it is to be taken as filed within this proceeding unless otherwise stated.
The plaintiff’s claim encompasses damages for injuries sustained as a result of acts or omissions against the plaintiff herself as a primary victim. She also claims damages for personal injury as a secondary victim founded on certain acts or omissions committed against her baby, particularised and defined as ‘the deprivation’.[3]
[3]Ibid [291], [298] and [304].
The plaintiff alleges that in 1962 and 1963 the plaintiff was a minor as the age of majority in Victoria at that time was 21 years.[4] This matter is not contentious and, for the purpose of any preliminary question at least, was not disputed.
[4]Ibid [23].
As the second and third defendants are unincorporated associations, the plaintiff relies on the LID Act. Without the nomination of a proper defendant enabling the Court to determine any claim ‘as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim’ the alleged tortfeasors have no recognised legal identity.[5] Both defendants but deny that the LID Act applies to the plaintiff’s claim so the proceeding cannot be maintained against them.[6] The plaintiff alleges that the Sisters of St Joseph of the Sacred Heart has nominated the second defendant as a proper second defendant in accordance with s 5 and s 7 of the LID Act.[7] An issue arises as to the state of that admission.[8] The third defendant is said to have operated, managed and controlled the Bureau, and so is liable for its acts or omissions. On the pleadings both the Archdiocese and the Bureau are unincorporated and the third defendant has not nominated a defendant pursuant to s 7 of the LID Act. The LID Act has no application to the claim against the first defendant who is a body corporate pursuant to the Health Services Act. [9]
[5]Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) s 7(4) (‘LID Act’).
[6]Second defendant, ‘Defence of the Second Defendant’ filed 19 June 2024, [5](c) (‘second defendant’s defence’); and third defendant, ‘Third Defendant’s Defence to Further Amended Statement of Claim’ filed 23 July 2024, [8](d) (‘third defendant’s defence’).
[7] Further amended statement of claim [5]–[7].
[8]This issue is not the subject of the proposed preliminary questions and is to be separately considered prior to trial if necessary.
[9]Health Services Act 1988 (Vic).
All three defences plead that any claim is statute barred by operation of the Limitation of Actions Act 1958 (Vic) (Limitation Act). This is because plaintiff’s claims are for personal injury which, by operation of ss 27D and 27N(4), are subject to limitation periods which have expired, and no extension of time has been sought.[10] The plaintiff relies on her action being ‘founded on personal injury of a person resulting from an act or omission that is physical abuse or sexual abuse’, within the meaning of s 27O in Division 5 of Part IIA of the Limitation Act. If s 27O is applicable, the limitation periods and extension provisions in Divisions 2 and 3 of the Limitation Act do not apply to the plaintiff’s claims. The reply to each defence raises an alternative course that, if necessary, she intends to rely on the extension provision in s 27K and seek an order extending time based upon matters including the factors in s 27L.
[10]First defendant, ‘Defence of the First Defendant’ filed 3 June 2024, [318]–[319] (‘first defendant’s defence’); second defendant’s defence [318]; and third defendant’s defence [318].
Finally, the plaintiff’s claims are subject to the Wrongs Act 1958(Vic) (Wrongs Act).[11] The plaintiff has served a certificate of assessment by a psychiatrist. The certificate has not been accepted and the matter has been referred to a medical panel. The plaintiff pleads that she does not require an assessment of significant injury in order to recover non-economic loss damages because:[12]
(a)her proceeding is a claim where the ‘fault concerned is, or relates to, an intentional act done with intent to cause injury or is sexual assault or other sexual misconduct’, so within the exclusionary provision of s 28LC(2)(a) of the Wrongs Act, so Part VBA of the Wrongs Act has no application to her, and/or;
(b)her injury is a psychological or psychiatric injury arising from the loss of her child due to injury to the mother or child in defined circumstances, so within the meaning of the deeming provision in s 28LF(1)(ca).
The defendants have denied that the exclusion provision and the deeming provision are validly relied on.
[11]Wrongs Act 1958 (Vic) (‘Wrongs Act’).
[12]Further amended statement of claim [317].
The referral of the question of significant injury to a medical panel occurred on 22 December 2023. This resulted in an examination on 28 May 2024 and a determination that the psychiatric injury alleged, although occurring more than sixty years ago, had not stabilised. The certificate of opinion stated that a further examination in twelve months’ time would be fixed in accordance with the Wrongs Act.[13] The plaintiff provided submissions that the re-examination be brought forward in light of the forthcoming trial date and the advanced age of the plaintiff. An administrative officer wrote to say that the examination would be conducted in May 2025 in accordance with the panel’s certificate. No reasons were provided for rejecting the plaintiff’s submissions. The ability to recover damages for non-economic loss therefore remains uncertain.
[13]Plaintiff, ‘Plaintiff’s Submissions In Opposition To The Determination Of Preliminary Questions’ filed 30 January 2025 [34]–[36] (‘Plaintiff’s submissions’).

B. The proposed questions and procedure

There are six proposed questions:
Limitation Act
1.Is any part of the plaintiff’s action in this proceeding founded on personal injury of a person resulting from an act or omission in relation to the person when the person was a minor that is physical abuse or sexual abuse within the meaning of s 27O of the Limitation of Actions Act 1958 (Vic)?[14]
2.In light of the answer to question 1, is the plaintiff’s proceeding, or any part(s) of it, statute barred by s 27D of the Limitations Act as against the:
(a)       first defendant?
(b)       second defendant?
(c)       third defendant?
[14]Limitation of Actions Act 1958 (Vic) (‘Limitations Act’).
Legal Identity of Defendants Act
3.Is any part of the plaintiff’s claim against the second and/or third defendant a claim founded on or arising from ‘child abuse’ within the meaning of ss 3 and 4 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic)? If so, which parts?
4.In light of the answer to question 3, what, if any, parts of the plaintiff’s claim can be pursued against the second and/or third defendants?
Wrongs Act
5.Is the plaintiff’s claim against the third defendant a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause injury or that is sexual assault or other sexual misconduct, within the meaning of s 28LC(2)(a) of the Wrongs Act 1958 (Vic)?
6.Is the plaintiff’s alleged injury a psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or the child before, during or immediately after the birth, within the meaning of s 28LF(1)(ca) of the Wrongs Act 1958 (Vic)?
At present, the trial is listed for hearing commencing on 25 March 2025. When the matter initially came on before me on 12 November 2024, a series of questions had been substantively agreed between all parties and submissions exchanged. The hearing was to determine the precise form of the questions and to determine the way in which the hearing to address those questions would be conducted. I expressed some concern as to the basis upon which the preliminary questions would be determined in light of the substantial factual contests raised by the pleadings. The questions have undergone some revision since that time.
When the matter returned on 19 December 2024 for further directions, the plaintiff had withdrawn her consent to the applications for preliminary questions. For a variety of reasons the first defendant no longer presses its summons. The second and third defendants maintained their applications primarily on the basis that whether the LID Act is applicable to the plaintiff’s claims is a threshold question that would determine whether the claims can be maintained at all against those defendants. On the question of whether the plaintiff has to satisfy the ‘significant injury’ provisions of the Wrongs Act, those questions have a direct bearing on the trial date, whether or not they are matters suitable for separate questions. The second defendant opposes a trial proceeding while the question of the ability to recover general damages under the Wrongs Act remains undetermined. A summons to vacate the trial date remains on foot.
The questions themselves had been revised and are now those set out above. The defendants propose that the separate questions be determined on the basis of an assumption that the plaintiff’s pleaded case can be established at trial. It is therefore not proposed to agree contentious facts or have them judicially determined.
On 7 February 2025 the parties argued the appropriateness of the proposed preliminary questions for determination.

A.1 The pleaded case

The plaintiff’s case against the hospital is based first upon her ante-natal[15] and post-natal[16] treatment and the labour and delivery[17] of her baby (collectively ‘the treatment’). A number of specific acts and/or omissions are pleaded in relation to the treatment. They are digital vaginal penetrations, breast examinations, prescription of Diethylstilbestrol (DES), demeaning comments during antenatal treatment, shackling and the use of pillows and sheets during labour and birth, an incident after delivery where the plaintiff was left on a trolley in a hallway, the prescription of tranquilliser medication after delivery, and the actions of the hospital’s almoner in relation to, amongst other things, the manner of registering the birth and exerting pressure on the plaintiff to adopt her baby.
[15]Further amended statement of claim [30]–[50].
[16]Ibid [107]–[115].
[17]Ibid [77]–[83].
Causes of action in battery, negligence, intentional infliction of harm and false imprisonment are set out. Second, the pleaded case sets out the Hospital’s role in the ‘abduction’ of the baby; namely keeping the mother and baby separated and assisting in the transfer of the baby from the hospital.[18] The various acts or omissions are relied on for claims in negligence, the intentional infliction of harm and breach of statutory duty. A breach of fiduciary duty is also pleaded in respect of the treatment and the hospital’s role in removal of the baby.
[18]Ibid [132].
The plaintiff’s case against the second defendant is that it ‘worked together’ with the other two defendants to facilitate the adoption in the absence of permission or consent to do so.[19] Two specific attendances by the plaintiff at the premises of the Sisters of St Joseph are also relied on. The first attendance, where permission to enter was refused is the basis for a claim of assault by the nun concerned or in the alternative negligence.[20] At a second attendance, the plaintiff is alleged to have been permitted to enter but prevented from going further by a nun and told to leave immediately.[21] This second attendance also gives rise to claims of assault and in negligence. Generally a breach of statutory duty owed under the Adoption of Children Act 1958 in facilitating the adoption and a breach of fiduciary duty are also alleged.
[19]Ibid [184].
[20]Ibid [186].
[21]Ibid [204].
The case against the third defendant pleads they were ‘involved’[22] in the removal of babies and had a general practice of assisting in ‘the abducting of babies’[23] including the plaintiff’s baby, by arranging for and transporting the baby from the Hospital to St Joseph’s, speaking on the phone with the plaintiff and meeting with her to sign relevant paperwork. It is alleged that the plaintiff’s signature on papers giving consent was vitiated by fraud, duress, undue influence and/or improper means.[24] The pleadings identify the actions of an identified employee. The pleaded matters are said to amount to negligence, breach of statutory duty and/or breach of fiduciary duty.
[22]Ibid [242].
[23]Ibid [243].
[24]Ibid [255].
The plaintiff also claims damages for pure mental harm as a ‘secondary victim’ arising from a breach of a duty owed to her to manage her baby at the hospital. As against the second and third defendants the secondary victim claim alleges pure mental harm arising from the ‘deprivation’ suffered by the baby as a result of the steps taken by each defendant.[25] The deprivation is particularised against each of the second and third defendant.
[25]Ibid [292], and [304].

A.2 What conduct is said to constitute child abuse?

The pleading identifies child abuse under the LID Act in Part 6 of the Further Amended Statement of Claim. It pleads:
310.Within the meaning of sections 3 and 4 of the LID Act, Ms Coughlan has commenced this proceeding arising out of child abuse in the form of physical abuse suffered by her as a result of:
a.   the examinations;
b.   the prescription of DES;
c.   the use of the shackles;
d.   the use of the pillows and sheets;
e.   the physical separation of mother and child at the Hospital;
f.    the physical removal and abduction of [her child] from Ms Coughlan on birth;
g.   the use of the tranquilisers;
h.   the trolley incident;
i.    the first attendance;
j.     the second attendance; and
k.   the physical abduction of [her child] caused or contributed to by St Joseph’s and the Bureau.
311.Further, or in the alternative, within the meaning of sections 3 and 4 of the LID Act, Ms Coughlan has commenced this proceeding arising out of child abuse in the form of sexual assault or other sexual misconduct suffered by her as a result of:
a.   the digital penetrations;
b.   the breast examinations; and
c.   the sexual deviant comments.
312.Each of the said forms of child abuse in the preceding two paragraphs has caused or contributed to Ms Coughlan suffering from psychological abuse within the meaning of section 3 of the LID Act.
313.Further, or in the alternative, within the meaning of sections 3 and 4 of the LID Act, Ms Coughlan has commenced this proceeding arising out of child abuse in the form of physical abuse to [her child] as a result of:
a.   the physical separation of mother and child at the Hospital;
b.   the physical taking of [her child] from the Hospital to St Joseph’s with the assistance of the Bureau; and
c.   the physical taking of [her child] from St Joseph’s to her adopted parents with the assistance of the Bureau.[26]
[26]Ibid [310]–[313].

B Principles

Rule 47.04 of the Rules states:
The Court may order that –
(a)any question in a proceeding be tried before, at or after the trial of the proceeding any may state the question or give directions as to the manner in which it shall be stated;
(b)different questions be tried at different times or places or by different modes of trial.
The principles to be applied in determining questions before the substantive trial of a proceeding pursuant to rule 47.04 are well settled and are not in dispute between the parties. They include matters recently described as the ‘Murphy principles’,[27] namely:
[27]So described in Hoh v Ying Mui Pty Ltd [2019] VSCA 203; and as discussed by Derham AsJ in Vale v Daumeke [2015] VSC 342.
1. A separate trial should be ordered under r 47.04 only with great caution and only in a clear case.
2.   The attraction of trials of issues rather than of cases in their totality, ‘are often more chimerical than real’, so that separate trials should ‘only be embarked upon when their utility, economy and fairness to the parties are beyond question’.
3.   The advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding.
4.   There should be no trial of a separate question on the basis of assumed facts unless the facts are agreed or can readily be determined judicially. Otherwise the parties remain free to dispute the relevant facts at any later trial.
5.   As a general rule, it is inappropriate to order that a preliminary issue be isolated for determination unless the determination of the issue in favour of the plaintiff or the defendant will put an end to the action or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.
6. Factors which tell against the making of an order under r 47.04 include that the separate determination of the question:
a.may give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;
b.may result on significant overlap between the evidence adduced on the hearing of the separate question and at trial; possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding; and
c.may prolong rather than shorten the litigation.[28]
[28]As summarised in Murphy v State of Victoria [2014] VSC 363, approved in Murphy v State of Victoria [2014] VSCA 238 [28].

Additionally, the following matters are relevant in determining separate questions:
(a)the onus is on an applicant for a trial of a separate question to persuade the Court it is appropriate to exercise the discretion;[29]
(b)question is a term defined by rule 1.13 of the Rules to be:
any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of the proceeding …
In the context of rule 47.04 a separate question is limited to questions, issues or matters that would otherwise be determined as part of the trial of the proceeding and bear upon the relief claimed or the extent of that relief.[30]

B.1 The relevant legislative provisions:

[29]Idoport Pty Ltd v National Australia Bank [2000] NSWSC 15 [7].

[30]Burns Philp & Co v Bhagat [1993] 1 VR 203.

B.1.1 Limitation of Actions Act

Section 27O is found in Division 5 of Part IIA – Actions for personal injury resulting from child abuse. Section 27O provides:
(1) This Division applies to an action if the action—
(a)is in respect of a cause of action to which this Part applies or extends; and
(b)is founded on the death or personal injury of a person resulting from—
(i)an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse; and
(ii)psychological abuse (if any) that arises out of that act or omission.
(2)Divisions 2 and 3 do not apply to an action of a kind referred to in section 27P.
The Limitation Act does not define ‘physical abuse’ or ‘sexual abuse’ either in the definitional provision of Division 5 or generally.

B.1.2 LID Act

In s 1, the LID Act describes its main purpose as to provide for:
child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations…
In s 3, it defines child abuse as:
Child abuse means –
(a)an act or omission in relation to a person when the person is a minor that is physical abuse or sexual abuse; and
(b) psychological abuse (if any) that arises out of that act or omission—
and includes alleged child abuse;
It then provides a further definition of what is not included in physical abuse and a definition of sexual abuse, as follows:
physical abuse does not include an act or omission committed in circumstances that constitute—
(a) lawful justification or excuse to the tort of battery; or
(b)any other lawful exercise of force;
sexual abuse means sexual assault or other sexual misconduct;

B.1.3 Wrongs Act

Section 4 of the LID Act states:
(1)This Act applies to any proceeding for a claim founded on or arising from child abuse.
(2) This Act applies to an NGO if—
(a)a plaintiff commences or wishes to commence a claim against an NGO founded on or arising from child abuse; and
(b)but for being unincorporated, the NGO would be capable of being sued and found liable for a claim founded on or arising from child abuse; and
(c) the NGO controls one or more associated trusts.
Part VBA of the Wrongs Act limits to recovery of damages for non-economic loss in respect of an injury caused by the fault of another person unless that injury is a significant injury. Part VBA has no application to certain claims. Relevantly, s 28LC provides that it does not apply to claims excluded by sub-s (2) including:
(a)a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or sexual misconduct;…
If Part VBA is applicable to the plaintiff’s claim, what amounts to a significant injury is then defined in s 28LF. Relevantly, it can be established by a medical panel determination that the degree of impairment satisfies the threshold level,[31] or, as relied on here, if s 28 LF(1)(ca) applies. The provision is:
(ca)the injury is psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or the foetus or the child before, during or immediately after the birth...
[31]Wrongs Act s 28LF(1)(b).

C Submissions of the parties

The defendants[32] submit that the questions address the proper construction of the statutory provisions identified in the proposed questions and are questions of law that do not turn on resolution of disputed facts. The third defendant submits that the only conduct alleged against it is the ‘physical abduction’ of the baby in paragraph 310(k) of the Further Amended Statement of Claim[33] and the physical separation of the child from her mother.[34] The defence of the third defendant denies that the factual allegations pleaded amount to child abuse within the meaning of s 3 of the LID Act.[35] It submits that it is common ground between the parties that for the second or third defendant to be capable of being sued, it is necessary for the plaintiff to rely on the LID Act.[36]
[32]The plural use of ‘defendants’ in the context of this application is intended to only refer to the second and third defendants unless otherwise stated.
[33]Third defendant, ‘Submissions of the Third Defendant’ filed 23 August 2024 [10(c)] (‘Third defendant’s submissions’).
[34]Ibid [10(e)].
[35]Ibid [12].
[36]Ibid [14].
The proposed questions concerning the LID Act are first whether the alleged conduct of the first defendant in the treatment of the plaintiff and of any defendant in the adoption of the baby are capable of amounting to ‘child abuse’. Second, the questions address whether, if the conduct alleged against one defendant does not constitute child abuse, the plaintiff can nevertheless rely on the legislation because allegations of child abuse within the definition are made out against another defendant. Question 2 is therefore directed at whether it operates by reference to the pleaded conduct generally or by reference to the conduct of each defendant in question.
Similarly, the defendants submit that the questions arising under the Limitation Act also involve questions of construction and application of the relevant provisions and do not require determination of disputed facts. First, the defendants raise the issue of whether the plaintiff’s cause of action is one ‘founded on personal injury resulting from an act or omission ... that is physical abuse or sexual abuse’ properly construed in this legislation. Second, the defendants also raise the issue of whether the applicable limitation period is assessed by reference to the allegations against each particular defendant.[37]
[37]Ibid [8]–[12], second defendant’s defence [5]–[6].
Under the Wrongs Act, the first question is directed at the characterisation of fault of the third defendant, namely, whether it is an intentional act intended to cause injury, or is sexual assault or misconduct. It raises similar issues to the constructional questions 1 and 3 in relation to the other legislation. The second question is directed at the proper characterisation of the plaintiff’s claimed psychiatric injury including questions of causation and directed at the proper construction of ‘loss’ of a child.
In oral submissions the third defendant clarified that its submission was that the questions proposed were questions of law and that they could be answered on the basis of the plaintiff’s pleaded case, akin to a demurrer proceeding.[38] In other words, what is intended is to ask whether, on the proper construction of the relevant legislative provision, the plaintiff’s claims are maintainable in law. Some facts have been agreed. They are for the most part uncontroversial matters that are admitted on the pleadings. Relevantly they agree that the plaintiff was a minor and, at least for the purpose of any separate questions, the LID Act is capable of having application to her claim on this basis.
[38]Transcript of Proceedings, Coughlan v Monash Health (Supreme Court of Victoria, Forbes J, 7 February 2025) 9.1–7 (‘T’).
The third defendant submits the questions are threshold questions that, if answered favourably to the relevant defendant prior to trial, will operate to save time and cost. Even if answered favourably to the plaintiff, that they are questions that must be answered ‘at some point’.[39] In particular, resolving the issue of the applicable limitation provision will allow the plaintiff to make an extension application if necessary. If the plaintiff is not required to establish, or is deemed to have a significant injury on the proper construction of the statute, the trial could proceed without awaiting the outcome of the Medical Panel process.
[39]Third defendant’s defence [36].
Although the first defendant no longer presses its summons for separate questions, it made submissions confined to the case management implications. It referred to in circumstances where there are extant contribution proceedings between defendants affected by some defendants having a preliminary point described as a ‘knock-out blow’.[40]
[40]T 27.
The plaintiff opposes the applications on the basis that the factual issues do not give rise to a clear case appropriate for determination of a separate question and that the constructional choices that might arise are best determined in light of facts fully found.

D Consideration

Rule 47.04 involves a departure from the ordinary process of determining all contested issues of fact and law at trial. In my view, this process is not suitable for the proposed questions in their current form. Nor is it suitable on the basis of a separate trial on facts assumed from the pleadings.
The questions of statutory construction address the meaning of the words ‘child abuse’ in the LID Act with its statutory definitions of ‘physical abuse’ and ‘sexual abuse’. The latter two phrases are also used in s 27O of the Limitation Act. The questions require an answer as to the proper construction of all three terms in the context of both legislative schemes. The third defendant notes differences in the statutory phrases between the LID Act and the Limitation Act although the terms ‘physical abuse’ and sexual abuse’ are identical. The Wrongs Act questions raise two different specific questions of construction; one as applied to the nature of plaintiff’s claim against the third defendant only and the other as to whether the alleged psychological or psychiatric injury is one ‘arising from the loss of a child’ in the circumstances contemplated by s 28LF(1)(ca).
I accept that the answers, particularly to the questions regarding the LID Act, may be described as ‘threshold issues’, and that knowing the answers may in theory facilitate savings in efficiency of time and cost. The parties estimate a two-day hearing on separate questions compared with a 4 to 5 week trial on all contested issues. This may have been the basis of the initial consent of all parties to such a process. However, for the reasons that I will now explain, the potential savings are illusory and impractical.
Firstly, this is not a clear case. The acts or omissions of the defendants are relied on in an unusual factual context of an adoption where both mother and child were minors. The application of the LID Act to such a factual matrix is novel. It does not give rise to a threshold matter of identifying the necessary legal elements of such a cause of action. It is whether the facts relied on to make out those legal claims also meet the description of ‘child abuse’ as defined. The relevance of that issue as a threshold issue, the questions turn on whether the facts underpinning those causes of action are properly described as claims that attract the statutory nomination of a proper defendant and are time barred.
The case is against three defendants, each with a different role in the birth and adoption of the baby. Consequential issues such as whether conduct of one defendant, if amounting to child abuse as defined, is sufficient to attract the operation of the LID Act in respect of another defendant also demonstrate the factual complexity of a case within which to determine novel issues as to the statutory provision for nomination of a defendant capable of meeting any liability of a tortfeasor lacking a legal identity.
All defences plead that s 27D and s 27N(4) apply to bar the plaintiff’s claims. The plaintiff’s reply pleads reliance of s 27O. Again the construction of ‘physical abuse’ or ‘sexual abuse’ within s 27O gives rise to similar questions of construction. The questions are directed to determining which is the operative limitation provision.
On any view, the application of both the LID Act and the Limitation Act to the defendants are not clear and straightforward matters.
Second, the questions do not give rise to discrete issues. This remains so even if they can also be described as ‘threshold issues’ for some purposes. The issue of what is capable of being construed as ‘child abuse’ for the purpose of the LID Act, or ‘physical abuse’ or ‘sexual abuse’ for the purpose of the applicable limitation provision, are matters inter-related with the substantive factual matters in dispute between the parties. Evidence as to what was done or said or omitted are relevant to whether or not the plaintiff makes out some or all of her substantive causes of action as well as determining whether the acts or omissions are capable of amounting to abuse of the kind encompassed by the relevant statute.
The breadth of overlap is clear from the breadth of assumed facts relevant to the questions. There are no assumed facts agreed by all parties. The assumed facts are presumably to be distilled from the 62 page pleading covering 317 paragraphs. A set of agreed facts sets out those matters admitted on the pleadings between the plaintiff and third defendant only. None of those address matters specifically relevant to the proposed questions other than an agreement that the plaintiff was a minor at the relevant time. Matters of material fact as pleaded are objected to by some defendants as inadequate.[41] There is a large potential overlap between the factual matters intended to be assumed for the purpose of the separate questions and the factual matters intended to be disputed at trial.
[41]For example, the second defendant has objected to the sufficiency of the pleading relating to the material facts concerning its conduct in second defendant’s defence at [186]–[187].
The exercise in construing s 27O itself to determine whether it applies to the plaintiff’s claims against one or more defendant raises similar issues as to the construction of the terms physical abuse or sexual abuse. The factual overlap with the substantive claims is expansive.
Often the need to obtain an extension of time does give rise to discrete issues. Generally these discrete matters concern the length and reason for the delay in commencing a proceeding, issues of discoverability and any legal disability affecting the timing of the expiry of a limitation period. Frequently it is appropriate to determine them prior to trial. However, as Hamilton v Dominicans Provinces of the Assumption demonstrates, the inter-related nature of the relevant evidence, and its complexity when spanning decades as it did in that case, warrant on occasion an extension of time being determined as part of the trial of the proceeding.[42] This does not preclude the need to manage discrete elements of evidence going to any extension application where it is to be determined at trial.
[42]Hamilton v Dominican Provinces of the Assumption & Anor [2021] VSC 261.
Here, the proposed question addresses the application of competing statutory limitation provisions. It is not simply the application of agreed statutory provisions in circumstances of factual complexity. The separate question, if able to be answered as a question on assumed facts, would resolve only the question of which provision is applicable. While I accept that this has a capacity to somewhat narrow the issues in dispute, its effect on the conduct of the proceeding is limited. Depending on the answer it may have no bearing on, or would leave open only the need for an application for an extension of time and its timing. On any view the limitation questions have capacity to extend the issues at trial but not to reduce them.
Third, the defendants’ application is premised upon the proposed questions all being questions of law. As such they are said to require no evidence or need for application to contested facts and can be answered upon assumed facts. However, I am not persuaded that the proposed questions are properly characterised as purely questions of law. This does not preclude them being appropriate for separate questions but it is an important consideration for the basis upon which the court is to answer those questions.
A question of statutory construction is frequently one only of law. However, such questions are not exclusively of that character.[43]
[43]Vetter v Lake Macquarie CityCouncil (2001) 202 CLR 439; and Hope v Bathurst City Council (1980) 144 CLR 1.
In the task of statutory construction, it is sometimes necessary to identify whether the task concerns questions of law and those of mixed law and fact. Mason J said in Hope v Bathurst City Council:
Many authorities can be found to sustain the proposition that the question of whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.
…
However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within those words. [44]
[44](1980) 144 CLR 1 [11]–[12].
The parties did not squarely address the nature of the proposed questions other than by assertion that they were questions of law, or as the plaintiff submitted, were questions raising matters of contested facts. There is no submission that child abuse or its constituent meanings of physical abuse or sexual abuse, should be construed other than in their ordinary English meaning.
By analogy drawn by Mason J, the example of a charge of using ‘insulting’ behaviour under the Public Order Act (1936), raised a constructional issue whether the conduct was ‘insulting’ within the meaning of the statute.[45] This was a question of fact.
[45]Brutus v Cozens (1973) AC 854.
In such cases the analysis of what amounts to a question of law, and what of fact, follows four steps:
(a)As a matter of law, does the legislation use the relevant words in ‘any other sense than which they have in ordinary speech’.
(b)If not, the common understanding of the words is to be determined as a question of fact.
(c)‘The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the material falls within the ordinary meaning of the words as so determined; and that is a question of law’.
(d)If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact’.[46]
[46]Hope v Bathurst City Council (1980) 144 CLR [12] (Mason J), quoting NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 (Kitto J).
Where the first step is answered in the negative, then the question becomes one of mixed law and fact.[47] It seems to me the construction of ‘child abuse’, ‘physical abuse’ and ‘sexual abuse’ are terms necessarily involving questions of fact. Construed by their common understanding, they raise questions of mixed law and fact. They are phrases best construed on the basis of facts fully found.
[47]Ibid, see also NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 512.

If a separate question is one of mixed law and fact, the factual basis for the answer must be precisely identified. In Jacobson v Ross, Brooking J said:
It may be that a question of law can be determined in a preliminary way without regard to the facts. … But where the preliminary question cannot be properly answered without reference to the facts of the case (and this will be so with any question of mixed law and fact), the order for the preliminary trial of the question should show how the relevant facts are to be identified for the purpose of that preliminary trial and whether the relevant facts are merely taken to be assumed for the purpose of the preliminary question or on the other hand are either to be mutually admitted or proved. Where the preliminary issue to be determined is one of law or of mixed law and fact and there are relevant facts which are in dispute, the court may in its discretion make an order for the trial of the preliminary issue on the footing that the relevant disputed questions of fact will be resolved by the court in the course of determining the preliminary issue…
…
… in particular failure to perceive that the facts alleged in a pleading are only some of the facts relevant to the determination of the preliminary question, may make the order for preliminary determination unfruitful.
…
Care must be taken to distinguish between cases in which the relevant facts, one identified, are to be mutually admitted or are to be judicially determined on the one hand and, on the other hand, cases in which the relevant facts are merely assumed by one party to be correct for the purpose of the preliminary determination. In the latter case, one party is in effect demurring or taking an objection in point of law. He says : ‘Let it be assumed that the fats are alleged by my opponent. Still they give rise to no cause of action [or defence as the case may be]’. This approach is possible only where the question to be determined is one of law, not one of mixed law and fact.’[48]
[48]Jacobson v Ross [1995] 1 VR 337, 340-341.
The defendants do not propose to mutually admit relevant facts nor propose that relevant facts not admitted be judicially determined. Rather in the face of an adverse answer to the questions, the defendants would remain free to dispute all facts at trial.
Fourth, to use a process analogous to a demurrer process is misconceived in this instance. A demurrer or a strike-out application assumes the facts as pleaded will be made out. However such a process addresses whether an arguable cause of action can be made out. A preliminary question is not concerned with an arguable case but with a separate question binding on the parties at trial when all the facts are heard and determined. The need for a clear case is understood when the answer to a preliminary question will put beyond argument the answer to that question.
The analogy to a summary or demurrer process on a question of law emphasises the caution with which a separate question of law under r 47.04 is approached. An approach that answers preliminary questions on the footing that broad allegations in a statement of claim are assumed to be true, and where the necessary detailed facts are not before the court, has been criticised.[49] If a factual situation gives rise to novel but arguable questions of law, then a summary procedure is often inappropriate. As Kirby J said:
Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle.[50]
Although the question in this case is not one as to the viability of the cause of action, but the viability of the identity of the defendant in law the comments are nevertheless applicable.
[49]Jacobson v Ross [1995] 1 VR 337, 341.
[50]Wickstead v Browne [1992] NSWCA 272; 30 NSWLR 1, 5–6, Kirby J in dissent on the outcome.
Even if the present questions are constructional questions that are properly purely questions of law, there is not a proper factual basis to determine the legal question. Constructional choices are generally best considered on the basis of the facts to which those choices are to be applied. The pleadings lead to uncertainty as to the facts upon which the determination is to be made if it is to be heard before a trial. This makes the process poorly suited to a trial of a separate question.
To give one illustration; the second defendant is alleged to have ‘worked together [with the other defendants] to facilitate [the baby’s] adoption’.[51] The defence objects to the pleading as the phrase ‘worked together’ is vague and embarrassing and does not state the basis upon which the entities acted. Similarly the first defendant objects to the adequacy of the pleading that it ‘facilitated’ the adoption.[52]
[51]Further amended statement of claim [184].
[52]First defendant’s defence [167], [184].
To give another example, the question of consent is raised in different contexts by the pleadings. Lack of consent to the adoption appears central to the plaintiff’s plea of removal and abduction of the baby relevant to the conduct of all three defendants. The factual circumstances of consent against each must be factually specific to each defendant. The particulars by which the plaintiff alleges consent to adoption to have been vitiated by conduct of the third defendant are set out at [246] to [254].[53] They include matters such as ‘was not given an opportunity to …’ ‘was not informed of …’[54] and an allegation that the plaintiff was not permitted to by accompanied by or speak with persons during the meeting. As against the second defendant consent is pleaded in accordance with the Adoption Act as a basis for breach of statutory duty and generally a failure of consent being given during the period the baby was present at St Josephs.[55] Against the first defendant lack of consent is alleged in respect to consent to medical treatment as well as on the question of adoption. What facts are to be assumed in respect of these pleadings, or is it to be assumed that some or all of these matters are factually sufficient to determine the circumstances in which a lack of consent is said to give rise to relevant child abuse?
[53]Further amended statement of claim.
[54]Ibid [254].
[55]Ibid [185].
The present questions can be contrasted with the use of the r 47.04 procedure in the matter of RWQ.[56] At issue in RWQ was whether the LID Act extended to secondary victims’ claims for pure psychiatric injury arising from conduct amounting to child abuse to others. That turned on construction of the phrase ‘founded on or arising from’ within ss 4 and 7 of the LID Act and did not rest on the factual matrix of the claim.
[56]RWQ v The Catholic Archdiocese of Melbourne & Ors [2022] VSC 483; and The Catholic Archdiocese of Melbourne v RWQ (a pseudonym) [2023] VSCA 197; 72 VR 375.
Where a separate question on a single issue is also capable of knocking out the case against a particular defendant without a trial on the contested facts and law, it may call into question questions of fairness to the parties of using rule 47.04. Here the preliminary question will sidestep a summary argument as to whether the claim is arguable on the pleadings and determine, as a question of construction, the applicability of the LID Act and limitation issues to factual circumstances alleged before those facts are determined.
Fifth, and relatedly, the advantage of separate questions for the defendants may unfairly disadvantage the other parties as the questions will provide answers without the benefit of all of the evidence relevant to the claims. The LID Act questions, at least, say nothing about the viability of the claims themselves in law. They turn exclusively on whether the LID Act permits the legal fiction of pursuing a claim against a tortfeasor who is an unincorporated association by nomination of a proper defendant. Whether in this case the ways alleged by paragraphs [310] and [313] of the further amended statement of claim are capable of supporting the definition of ‘child abuse’ is a matter that in my view requires the benefit of detailed factual findings. It is on those findings that the application of the LID Act as to the characterisation of the claims is appropriate.
The fact that the proposed questions allow for the prospect that only parts of the claims are founded on or arising from child abuse, also makes the issue one that is not ripe for determination. This suggests that some claims against some but perhaps not all defendants might amount to alleged child abuse and poses a further question about the applicability of the LID Act in those circumstances.
Sixth, as a practical matter, even if all the answers are favourable to both the second and third defendants this will not obviate the need for a trial. Substantive issues will remain between the plaintiff and at least the first defendant. Potentially the need for an application to extend the limitation provision or await a determination of a medical panel as to the recovery of general damages will remain outstanding. Therefore, the potential for a trial of separate questions of such breadth, close to trial, with attendant potential for appeal has the prospect to derail and delay any trial on remaining issues.
On no view will an answer to the separate questions concerning the LID Act obviate the need for the Court to conduct a lengthy trial on disputed facts. It has no direct bearing on the issues in dispute between the plaintiff and the first defendant which include the lack of consent to adoption. It does have a tangential bearing on the issues overall as to the proper characterisation of the plaintiff’s claim as one of ‘child abuse’ and the standing of nominations made by the unincorporated defendants. Even the case management benefits from the court’s perspective is chimerical.
Finally the defendants did not submit that the Wrongs Act questions by themselves warranted an order for a separate trial. Rather it was submitted there was utility in dealing with those questions of construction given the outstanding Medical Panel assessment. That utility would be to know whether or not the Medical Panel assessment was in fact necessary. Leaving to one side the present situation and the medical panel’s position that it will not conduct a re-examination until May 2025, the question of significant injury is generally determined prior to trial. It is not uncommon to see the process commence or continue after proceedings are on foot. This may be by the timing of the plaintiff’s service of a certificate of assessment, or by reason of the joinder of defendants to a proceeding already on foot.
The questions address the effect of a deeming provision or an exclusionary provision on the need to comply with the statutory process where significant injury is disputed by a defendant. As far as I have been made aware, neither provision in question has been subject to any judicial consideration. Neither is a straightforward provision and both raise a number issues of construction. For the same reasons as identified in consideration of the LID Act and the Limitation Act, the absence of precise facts upon which to embark upon a question of construction makes a separate question fraught. In considering s 28LC(2), upon what basis is the exclusion of a claim that relates to ‘an intentional act that is done with intent to cause death or injury’ to be approached? What, if anything, do the pleadings say about relevant intent that is to be assumed? In considering the deeming provision, upon what factual assumptions disclosed by the pleadings is the question of whether the plaintiff’s injury is of a type arising from the loss of a child due to an injury to the mother or the child before, during or immediately after the birth to be answered?
Insofar as the parties provided a statement of facts agreed on the pleadings, nothing addressed the basis upon which the Wrongs Act provisions should be construed.
For the reasons above, the questions of statutory construction posed by the defendants in their applications for determination of preliminary questions are in my view questions that are better determined on the basis of factual findings as to the relevant acts or omissions. Bearing in mind all of the above, I am not satisfied that a trial of separate questions as to construction of the LID Act, or the Limitation Act or the Wrongs Act proposed has a utility, economy and fairness to all parties that is beyond question.
I will hear the parties on the various outstanding matters including the plaintiff’s summons for further discovery, the second defendant’s summons to vacate the trial date and the pleading issue raised by the second defendant’s defence, as well as timetabling and costs orders arising from these reasons.

SCHEDULE OF PARTIES

S ECI 2021 01078
BETWEEN:
BRENDA COUGHLAN	Plaintiff
v
MONASH HEALTH (ABN 82 142 080 338)	First Defendant
TRUSTEES OF THE SISTERS OF ST JOSEPH (ABN 33 293 441 659) TRADING AS SISTERS OF ST JOSEPH GENERALATE NORTH SYDNEY	Second Defendant
THE CATHOLIC ARCHDIOCESE OF MELBOURNE (ABN 64 047 619 369) TRADING AS THE CATHOLIC FAMILY WELFARE BUREAU	Third Defendant

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[2025] VSC 52

20 February 2025