Lynda Margaret Holden v Trustees of the Sisters of Mercy (North Sydney) Property Trust - [2015] NSWSC 565

No judgment structure available for this case.

Supreme Court

New South Wales

Medium Neutral Citation: Lynda Margaret Holden v Trustees of the Sisters of Mercy (North Sydney) Property Trust [2015] NSWSC 565
Hearing dates: 2 April 2015
Date of orders: 15 May 2015
Decision date: 15 May 2015
Jurisdiction: Common Law
Before: R S Hulme AJ
Decision:
1. Order the Plaintiff to supply within 28 days to each of the Defendants further particulars:
(a) as identified in sections (ii), (iii), (vi), (vii), (ix), (x), (xi) and (xii) of reasons delivered today, and
(b) as identified in paragraphs 3 and 9 of reasons delivered today,
provided, however, that the Plaintiff need not supply such particulars if she elects to file an amended statement of claim within that period and provides such of the particulars ordered as are relevant to that amended statement of claim.
2. Grant liberty to the Plaintiff to file an amended statement of claim within 28 days.
3. Reserve the question of costs.
4. Stand the proceedings over for mention before me on 27 May 2015.
Catchwords: PRACTICE AND PROCEDURE – request for particulars – unduly burdensome – abuse of process – no obligation to answer questions – insufficient particulars in statement of claim – liberty to amend
Legislation Cited: Adoption of Children Act 1965 (NSW)
Civil Procedure Act 2005 (NSW)
Category: Procedural and other rulings
Parties: Lynda Margaret Holden (Plaintiff)
Trustees of the Sisters of Mercy (North Sydney) Property Trust (First Defendant)
Philomena Ryman (Second Defendant)
The Executor of the Estate of the Late Canisius Lussick (Third Defendant)
The Executor of the Estate of the Late Eugene Kinsmore (Fourth Defendant)
The Executor of the Estate of the Late Christina Harcombe (Fifth Defendant)
The Executor of the Estate of the Late Marie Agnes Hutchinson (Sixth Defendant)
The Trustees of the Society of St Vincent de Paul (NSW) (Seventh Defendant)
John Francis Davoren (Eighth Defendant)
Representation:
Counsel:
A C Bartley SC (Plaintiff)
M Joseph SC (Seventh Defendant
Solicitors:
Porters Lawyers (Plaintiff)
Hunt & Hunt (Seventh Defendant)

File Number(s): 2014/308587

Judgment

By notice of motion filed on 15 January 2015 the Seventh Defendant has sought orders to the effect of:

requiring the Plaintiff to provide particulars;

staying these proceedings meanwhile;

alternatively, requiring the Plaintiff to re-plead parts of the statement of claim;

striking out parts of the statement of claim;

dismissing the statement of claim either generally or in relation to specific claims;

that pleadings be verified.

The proceedings were commenced by statement of claim filed on 21 October 2014 against eight Defendants. The substance of the Plaintiff’s complaint is that in or about October or December 1970, a child she gave birth to at that time was removed from her, adopted, and removed from Australia and that any consent she purportedly gave to such adoption was procured by forgery misrepresentation, duress, undue influence and improper means. (The statement of claim is not entirely consistent in its reference to these matters.)
Paragraph 22, 31, 36, 42, 45, 47 and 48 allege things happened at various dates. It is impossible to reconcile all of these dates and clearly the Plaintiff must clarify the situation in those respects. However, in the context of the issues I must decide this inconsistency is minor.
The imposition on her is said to have occurred while she was in the “Waitara Home” in and after August 1970, in the Mater Misericordiae Hospital in or about September or December 1970 and thereafter when she had returned to the Waitara Home.
The First Defendant, the Trustees of the Sisters of Mercy (North Sydney) Property Trust, are said to be incorporated and to have owned and operated the Home and Hospital.
The Second to Sixth Defendants are said to have formed the “Provincial Council” of the Sisters of Mercy (North Sydney) and the Second Defendant is said to have been the Congregational Leader of that body. In the alternative to what was earlier alleged, it is said that the Congregational Leader and Provincial Council owned and operated the Home and Hospital.
It is alleged that The Seventh Defendant, the Trustees of the Society St Vincent de Paul (NSW) National Council of Australia, conducted the Catholic Adoption Agency, that that agency was registered as a private adoption agency within the meaning of the Adoption of Children Act 1965 (NSW) and that statutory obligations imposed on the agency were imposed upon its principal officer.
The Eighth Defendant is said to have been the principal officer at all material times and an employee or agent of the Agency.
The imposition at the Home is said to have been constituted by statements the effect of which are particularised in paragraph 23(b) of the statement of claim and by “continual duress”, a term used in paragraph 23(a). The form of the statement of claim does not make this clear but it may well be that the duress alleged is intended to be the statements referred to in paragraph 23(b). Be that as it may, the matter should be clarified and, if the reference to duress is intended to encompass more than the matters identified in paragraph 23(b), any additional matters identified.
It is also alleged that the First to Sixth Defendants through their servants or agents conspired:

to deprive the Plaintiff of lawful custody of her child – paragraph 26;

to procure the abduction of the Plaintiff’s child – paragraph 27;

to unlawfully interfere with the Plaintiff’s domestic and family relationships in relation to the child – paragraph 28;

to procure through unlawful means the apparent consent of the Plaintiff to surrender her child once born – paragraph 29;

to cause to be presented an application for adoption of the Plaintiff’s child in which the Plaintiff’s apparent consent was to be obtained by forgery, fraud or duress – paragraph 30.

A further allegation is that the Plaintiff’s person was the subject of trespass by the administration of sedatives, denying her the right to breast-feed her child and prescribing medication and binding the Plaintiff’s breasts to suppress lactation.
It is said that on 18 December 1970 the Plaintiff was discharged from the hospital and readmitted to the Home and then again subjected to conduct of the type described in paragraph 23(b).
The statement of claim in paragraph 46 further alleges that the Plaintiff’s purported consent to the adoption was obtained by “duress, undue influence and improper means” by reason that the First to Eighth Defendants’ servants or agents:

knew or ought to have known that the Plaintiff did not wish to surrender her child for adoption;

knew or ought to have known that the Plaintiff was not in a fit or proper medical or psychological condition to give informed consent;

directed the Plaintiff to sign the instrument of consent without allowing her to read it;

failed to explain the instrument of consent or provide a copy of it to her;

misled the Plaintiff as to the effect of the instrument of consent;

failed to explain to the Plaintiff how to revoke her consent; and

misled the Plaintiff as to the nature of her right to revoke her consent.

It is said that each Defendant through their servants or agents owed the Plaintiff a non-delegable duty of care by reason of, inter alia, their care, control and management of the Home and Hospital, the hospital/patient relationship, the Plaintiff’s vulnerability, and assumptions of responsibility.
Breaches of duty in some 40 respects are alleged. Some of those breaches are said to have been constituted by breaches of specified provisions of the Adoption of Children Act and regulations made thereunder. Others are described as “subjecting the Plaintiff to continual duress and emotional abuse directed to persuading her to surrender her child at birth”, misstatements, treating the Plaintiff in a “cruel, inhumane and degrading manner” and “breaching the Plaintiff’s inalienable rights as a human being” – paragraphs 51 and 53.
Paragraph 57 of the statement of claim alleges that in consequence of the Defendants’ breaches of duty and statute and the Defendants’ conspiracies and “the Plaintiff’s lawful right to the custody of her child and freedom from interference with her domestic and family relationships”, the Plaintiff has suffered injury, loss and damage particularised as “loss of the Plaintiff’s child, psychiatric injury and physical injury consequence (sic) upon the unlawful treatment”.
Sacrificing some accuracy for brevity, paragraphs 58 to 69 seek to link various of the First to Sixth (and possibly the Eighth) Defendants and attribute to some liability for the acts of others. Paragraph 70 alleges:

The conduct of each Defendant through their servants and/or agents fell so far short of acceptable standards of behaviour so as to represent a contumelious disregard and violation of the Plaintiff’s rights so as to warrant an award of exemplary and aggravated damages.
…
The Plaintiff relies on the facts and circumstances particularised above in their entirety.

The pleadings and particulars within the statement of claim occupy 70 paragraphs spread over 13 pages.
The particulars now sought were the subject of a request dated 28 November 2014 and which occupied some 23 closely typed pages, averaging on a very rough count over 12 numbered or lettered questions per page. Counsel for the Defendant said that if all the requests were added, in fact 762 had been made. I have not checked that figure. Having regard to the form of the request it would not surprise me if the figure were correct but I do not need to rely on it.
Undoubtedly, some of the questions were appropriate and reasonably asked. However, a large number were not. Examples are as follows:

General
Q1 With respect to the Plaintiff please provide:
(a) her full name and any previous names;
(b) her present residential address, her place and date of birth, her present marital status;
(c) the names, ages and addresses of any dependants and children;
(d) details of all medical conditions that the Plaintiff suffered from at the time of her admission to hospital on 10 December 1970;
(e) whether the Plaintiff was taking any prescribed or non-prescribed medication prior to her admission to hospital on 10 December 1970;
(f) the name and address of all medical practitioners the Plaintiff has seen since 10 December 1970 to date and the dates of such consultations and the condition for which the Plaintiff was treated;
(g)…
Q2 With respect to paragraph 35 of the SOC, please clarify the date the Plaintiff gave birth to the child.
Liability
As to paragraph 16 of the SOC
[Paragraph 16 was in terms “at all material times, the Seventh Defendant conducted the Catholic Adoption Agency and had the care, control and management of that Agency for the purposes of the Adoption of Children Act 1965.”]
Q3 Identify each fact and circumstance of the Seventh Defendant, their servants or agents for which it is alleged it conducted the Catholic Adoption Agency (CAA)?
Q4 When did each fact/circumstance occur?
Q5 Who is it said so acted?
Q6 What position or role did the person who so acted hold at the time of the act?
As to paragraph 19 of the SOC
[Paragraph 19 alleged “the ‘Principal Officer’ was at all material times an employee of the Seventh Defendant or alternatively was its agent for the purposes of the Seventh Defendant acting as the Catholic Adoption Agency’.”]
Q7 What are the material facts upon which it is alleged the Eighth Defendant was an employee of the Seventh Defendant?
Q8 Who on behalf of the Seventh Defendant entered into a contract of employment with the Eighth Defendant?
Q9 Who are the parties to the contract?
Q10 When was that contract entered into?
Q11 Identify the terms of the contract for employment.
Q12 Who on behalf of the Seventh Defendant, its servants or agents supervised and/or controlled and/or directed the Eighth Defendant’s conduct?

There followed some 11 further questions, two divided into six or seven sub-questions, also relating to paragraph 19 of the statement of claim. Relevant to the above questions are also paragraphs 17, 18 and 20 of the statement of claim which provide:

17   The Catholic Adoption Agency was at all material times registered as a private adoption agency within the meaning of the Adoption of Children Act 1965.
18   The statutory obligations imposed upon the Catholic Adoption Agency by the Adoption of Children Act 1965 were imposed upon the “Principal Officer” of the Catholic Adoption Agency.
20   The Seventh Defendant was at all material times vicariously liable for the acts and/or omissions of the “Principal Officer” of the Catholic Adoption Agency in his dealings with the Plaintiff.

The Adoption of Children Act provides in sections 10 and 11 that a charitable organisation may apply to the Director of the Child Welfare Department for approval as a private adoption agency and the Director may grant such approval. Section 12 of the Act provides that before making an application under section 10 a charitable organisation shall appoint a person resident in New South Wales to be its principal officer for the purposes of the Act.
Some of the questions included as question 1 may well be relevant to any assessment of damages. Some may facilitate searches for information that the Plaintiff may wish to obtain. They have nothing to do with pleadings. Most of the information requested in questions 1(a) & (b) is contained in the statement of claim, either in the pleading paragraphs or information provided pursuant to rule 4.2 of the UCPR or following the approved form of the statement of claim.
Counsel for the Plaintiff sought to justify these questions upon the basis that answers to them would help the Defendant to make an assessment as to whether it would receive a fair trial in respect of events that occurred decades ago and assist the Defendant to make a decision whether to plead a limitation defence. There was no evidence to suggest that any of the Defendants had seriously considered neglecting to plead whatever defences might be legally available to them or would be likely to accept an unverified statement from the Plaintiff asserting, for example, that she became aware of psychiatric problems only recently, so as to increase her chances of defeating a limitation defence. Nor was there any evidence to suggest that any of the Defendants had adopted such a magnanimous approach to litigation in the past.
Experience of litigation generally tends to indicate that such an approach is in the highest degree unlikely and all of question 1 was inappropriate.
Question 2 was appropriate because in paragraph 31 of the statement of claim the Plaintiff claimed that her confinement commenced on or about 10 December 1970 and in paragraph 35 that she gave birth on 17 October 1970.
Questions 3 to 23 must be considered against the background, firstly that it is inconceivable that the Plaintiff or her legal advisers could have any significant knowledge of all of the information sought relating to internal events within the Seventh to Eighth Defendants’ activities and operations some 45 or more years ago. Of course, knowledge on the part of a plaintiff is not the only test. A defendant is entitled to fair notice of the case a plaintiff proposes to advance but that does not entitle a defendant to ask and insist on answers to questions which, at the time they are asked, are pointless.
The relevant Defendants would be in an infinitely better position than the Plaintiff to know the answers to the questions 3 to 23 and even if they did not, could still adequately plead to the allegations in paragraphs 16 and 19.
A third very relevant matter is that in the way litigation is currently conducted a plaintiff is almost always required appreciably before trial to apprise a defendant of the plaintiff’s case in chief by written statements and documents. If the Plaintiff can make out the case pleaded in paragraphs 16 and 19, such documents would fairly apprise the Defendants of it.
A fourth consideration, and one which on its own, makes questions 3 to 23 as a group oppressive lies in the terms of s 12(5) of the Adoption of Children Act. I have set out some of the allegations in the statement of claim to the effect that the Seventh Defendant conducted the Catholic Adoption Agency and that this was registered as a private adoption agency under the Adoption of Children Act which I have quoted. Section 12(5) of the Act provides:

Anything done by the principal officer of a private adoption agency, or with his approval, shall, for the purposes of this Part and any regulations relating to private adoption agencies but without prejudice to any liability of the principal officer, be deemed to be done by the private adoption agency.

True it is that paragraph 23 of the statement of claim uses the terms “employee” and “agent” when in light of s 12(5) it probably need not have but that did not justify questions 3 to 23.
As a group, questions 24 to 33 of the request for particulars, directed to paragraph 20 of the statement of claim, and which I have set out above were no better. Questions 24 to 27 provide examples:

Q24   What are all the acts and omissions of the Eighth Defendant for which the Plaintiff alleges the Seventh Defendant is vicariously liable?
Q25   On what basis is the Seventh Defendant vicariously liable for each of those acts and/or omissions of the Eighth Defendant?
Q26   Does the vicarious liability arise from statute and if so what statute? If not from statute, how otherwise?
Q27   Is it alleged that the Seventh Defendant had control over the acts of the Eighth Defendant? What was the source of such control? What are the facts and circumstances by which it is alleged the control was exercised? By whom on behalf of the Seventh Defendant is it alleged exercised that control (sic)?

The Adoption of Children Act was not mentioned in paragraph 20 but had figured in paragraphs 16, 17 and 18. If the legal advisers of the Defendants had any doubts as to the foundation for what was said in paragraph 20, which is impossible to believe, question 25 alone or a simple request for confirmation of that foundation would have sufficed.
Questions 28 to 33 commenced as does question 27 with, “Is it alleged”. A simple response would have been “Read the statement of claim” but neither the original question in each of these questions 28 to 33, nor the subsequent ones within these numbered questions, were needed or should have been asked.
I can skip to some other questions. So far as is presently relevant, paragraphs 45 and 46 of the statement of claim were in terms:

45   On 22 December 1970, while the Plaintiff was still at the Home, the First to Eighth Defendants’ servants and/or agents purported to take the Plaintiff’s consent to the adoption of her child.
46   The purported consent was obtained by duress, undue influence and improper means by reason that the First to Eighth Defendants’ servants and/or agents:
(a)   knew or ought to have known that the Plaintiff did not wish to surrender her child for adoption; and
(b)   knew or ought to have known that the Plaintiff was not in a fit and proper medical and/or psychological condition to give informed consent; and
(c)   directed that the Plaintiff sign the instrument of consent without reading it to her or allowing her to read it; and
(d)   did not explain to the Plaintiff the effect and purport of the instrument of consent; and
(e)   did not provide the Plaintiff with a copy of the instrument of consent ; and
(f)   misled the Plaintiff as to the effect and purport of the instrument of consent in that they represented to her specifically that the form was not an adoption form…; and
(g)   did not explain to the Plaintiff how to revoke her consent; and
(h)   misled the Plaintiff as to the nature of her right to revoke her consent.

The questions relating to paragraph 46 included the following:

Q48   When was each purported consent obtained and by whom?
Q49   What are all the facts and circumstances by which it is alleged that the conduct of the First to Eighth Defendants, their servants or agents constituted duress? undue influence? and improper means? Each separately or collectively allegedly caused the Plaintiff to provide her purported consent. We note that the allegations made here are of a type covered by 15.3 of the UCPR.
Q51   What conduct of the Seventh Defendant’s servants and/or agents and/or Eighth Defendant constituted undue influence, and what facts, matters and/or circumstances does the Plaintiff rely on as giving rise to such conduct? Please advise with precision the basis of this allegation?
Q52   What conduct of the Seventh Defendant’s servants and/or agents and/or Eighth Defendant constituted improper means, and what facts, matters and/or circumstances does the Plaintiff rely on as giving rise to such conduct? Please advise with precision the basis of this allegation?

It was submitted that the Plaintiff was obliged to specify which of the sub-paragraphs set out in paragraph 46 the Plaintiff relied on for each of duress, undue influence and improper means. Counsel could cite no authority for the proposition and demonstrably such specification is not necessary for the Defendants to be able to plead or to have fair opportunity of defending the allegations at trial. The submission must be rejected as, given the terms of the statement of claim, must each of the questions quoted.
I have said enough to demonstrate that the request for particulars is an abuse of process. A respondent to such a request is under no obligation to hunt through it to find questions that should be answered. Indeed, though I do not find it necessary to rely on this it is impossible to avoid the impression that the request was drafted, not with the aim of obtaining information that the Defendants reasonably needed but to make the request as long and as burdensome as possible. There are of course other possible explanations but I do not need to pursue the topic. The request is, as I have said, an abuse of process.
If there were nothing more, I would simply dismiss the application so far as it seeks an order for the supply of particulars and order the Defendants or the draftsman to pay the Plaintiff’s costs. However, despite an earlier and well justified response to the effect that the request for particulars was “oppressive and inappropriate” on 1 April 2015, the day before the Seventh Defendant’s notice or motion was scheduled to be heard, the Plaintiff’s solicitors did provide a detailed response to the request, albeit in response to many questions remarking to the effect that “this is not a proper request for further and better particulars”.
The response did not assert that the request was an abuse of process – a matter upon which counsel for the Defendants relied. However, the Court has an interest in ensuring that its processes are not abused and the fact that the Plaintiffs did not take the point does not make me disinclined to act as I have indicated.
In the letter of 28 November the solicitors for the Seventh Defendant also asserted:

The statement of claim makes many very serious allegations against my client. These claims were identified as:
Abuse of the Plaintiff,
Obtaining consent by applying duress, undue influence and improper means,
Obtaining consent “knowing” the Plaintiff was not fit to give such,
Misleading the Plaintiff,
Subjecting the Plaintiff to continual duress and emotional abuse,
Breaking down the Plaintiff’s free will,
Breaches of the Adoption of Children Act and its regulations which would amount to criminal offences,
Abducting the Plaintiff’s child,
Wrongly represented of facts to the Plaintiff (sic),
Unlawfully interfering with the Plaintiff’s domestic and family relationships,
Treated the Plaintiff in a cruel, inhumane and degrading manner,
Conspiring with others to procure the abduction of the Plaintiff’s child.

The letter went on to assert that these allegations were made without attention to the specificity required by UCPR Part 14.14 and that the pleading was an abuse of process and should be struck out.
Counsel appearing before me for the Seventh Defendant submitted that the paragraphs containing those allegations should be struck out. Counsel for the Plaintiff submitted that that should not occur given that the particular paragraphs were not specified. In the result, and partly due to the pressure of time during the hearing before me, there was no detailed argument on the topics. Nor was there any argument on the respective merits of the second to sixth prayers in the notice of motion. In that situation I indicated in relation to these summarised complaints that the only paragraphs of the statement of claim that I would consider striking out were those which answered the descriptions listed in [41] above – See T44.
Given my consideration of the statement of claim as an incident of the argument founded on the request for particulars and the specification of the matters listed in [41] above, the fact that the paragraphs the subject of the listed descriptions are readily identifiable, even if that identification has to be done by me and the likelihood that matters left unresolved are likely to result in another application at more cost to the parties, I have reached the conclusion that despite the scant argument on them I should deal with the matters listed. Written submissions advanced on behalf of the Seventh Defendant indicate that there will probably still remain some pleading issues although it may be that these will be very much reduced in consequence of what I say on the further matters with which I foreshadowed I might deal.
In the case of some of those matters, my reasons will be brief.

(i) Abuse of the Plaintiff

The paragraphs making this allegation- generally expressed as “emotional abuse” - are paragraphs 23(b), 24, 25, 39, 43, and 51(a).
The abuse referred to in paragraphs 23(b), 24 and 25, is specified in paragraph 23(b). The abuse referred to in paragraph 43 is specified in that paragraph and paragraph 23(b). I would infer that the abuse referred to in paragraph 51(a) is that earlier referred to and while it would be preferable that this be expressly stated, it is inconceivable that the Plaintiff would be allowed, because of paragraph 51(a), to rely on abuse not falling within earlier paragraphs.

(ii) Obtaining consent by applying duress, undue influence and improper means

The paragraphs making the allegation of “duress, undue influence and improper means” are paragraphs 46 and 51(f). The conduct said to be such is specified in paragraph 46 and the terms of paragraph 51(f) make it clear that the same “duress, undue influence and improper means” is being referred to.
“Duress”, not co-joined with “undue influence and improper means” is referred to also in paragraphs 23(a) and, referred to as “duress and emotional abuse referred to above”, in paragraph 25. I have already indicated that specification of that “duress” referred to in paragraph 23(a) should occur. I observe that the request for particulars did not seek details of the “duress” in paragraph 23(a).

(iii) Obtaining consent “knowing” the Plaintiff was not fit to give such

The paragraphs making this allegation of knowledge are paragraphs 46(b), 51(r), 51(u). The knowledge alleged is to the effect that the Plaintiff was not in a “fit and proper medical and/or psychological condition to give informed consent”.
The statement of claim refers to specific matters which may well be relied on as demonstrating the knowledge alleged but it provides little by way of identification of the Plaintiff’s medical and/or psychological condition. The Seventh Defendant is fairly entitled to know more about the condition alleged even though Part 15.4 excepts from the particulars required in respect of any allegation concerning condition of mind, particulars of knowledge.

(iv) Misleading the Plaintiff

The paragraphs making this allegation are paragraphs 46(f), 46(h) and 51(v).
The nature of the misleading alleged in paragraph 46(f) and 46(h) is identified in those paragraphs. A fair reading of paragraph 51(v) makes it obvious that the misleading there being referred to is that specified in paragraph 46(f).

(v) Subjecting the Plaintiff to continual duress and emotional abuse

The paragraph making this allegation is paragraph 51(a). I would infer that the “continual duress and emotional abuse” referred to in that paragraph are such matters earlier referred to – in paragraphs 23(a), 23(b) and 25. As I remarked earlier in respect of paragraph 51(a), while it would be preferable that this be expressly stated, it is inconceivable that the Plaintiff would be allowed, because of paragraph 51(a), to rely on duress and emotional abuse not falling within the earlier paragraphs.

(vi) Breaking down the Plaintiff’s free will

The paragraph making this allegation is paragraph 51(t) in which it is said that each Defendant breached its duty of care to the Plaintiff by “acting in a way which was directed to breaking down the Plaintiff’s free will and self-esteem for the purposes of inducing her to execute the consent forms under the Adoption of Children Act 1965”.
Although there are specific matters referred to in the statement of claim which prima facie would support this allegation, in its terms it is not limited by any circumstances of the Plaintiff or conduct of the Defendants and should be. Thus the allegation is insufficiently particularised.

(vii) Breaches of the Adoption of Children Act and its regulations which would amount to criminal offences

In paragraphs 51(gg) to 51(nn) and 53(a) to 53(g) of the statement of claim the Plaintiff alleges breaches of a number of sections of the Adoption of Children Act and regulations thereunder both as breaches of statutory duty and breaches of a common law duty of care.
Paragraphs 51(gg) and 53(a) of the statement of claim are in terms:

51 Each Defendant has breached its or their duty of care owed to the Plaintiff.
Particulars of breach of duty
…
(gg) Breaches of section 31(1)(a) of the Adoption of Children Act 1965.
53 The Defendants’ servants and/or agents have breached their obligations and duties imposed by the provisions of the Adoption of Children Act 1965.
Breaches of statutory duties pursuant to the Adoption of Children Act 1965
(a) The conduct of the Defendants as pleaded above was in breach of section 31(1)(a) in that the consent for the adoption of the Plaintiff‘s child which they procured was not given in accordance with the requirements of the Adoption of Children Act 1965;

Paragraphs 51(hh) to 51(nn) and paragraphs 53(b) to 53(g) follow the same general form save that paragraph 50(jj) refers to s 54 of the Adoption of Children Act and there is no corresponding allegation in paragraph 53. Thus, with the exception of paragraph 50(jj), the conduct said to be a breach of each of the provisions of the Act and regulations specified is identified as “pleaded above”. Certainly “pleaded above” were also many matters that did not constitute a breach of the individual sections but it does not seem to me that further specification was required for the Seventh Defendant to be able to plead. The primary matters relied on as constituting breaches of the individual sections and regulations were “pleaded above” and the Defendants were thus able to plead to them. In saying that I do not ignore the fact that in paragraphs 51(hh) to 51(nn) there is not the limitation “conduct of the Defendants pleaded above” but a fair reading of the statement of claim makes clear that it is the conduct earlier referred to that is being relied upon.
However, Part 15.5 of the UCPR requires in paragraphs (1)(b) and (2)(b) that there be stated separately the facts and circumstances on which a party relies in respect of each alleged breach. This has not been done and although in my view there has been enough pleaded to enable the Seventh Defendant to know and plead to the case made against it, there is no other particular reason why the Plaintiff should not adhere to the rule. Accordingly this complaint of the Seventh Defendant is made out.
I have pointed out that paragraph 50(jj) refers to s 54 of the Adoption of Children Act and there is no corresponding allegation in paragraph 53. Section 54 of the Adoption of Children Act is in terms:

A person who, whether orally or in writing, wilfully makes a false statement for the purposes of or in connection with a proposed adoption or any other matter under this Act, is guilty of an offence against this Act.

There are a number of allegations in the statement of claim as to the making of false statements or misrepresentations although only some, e.g. those in paragraph 46(f) and (g), were said to be made by persons who are said to have possibly been the Seventh Defendant’s servants or agents. However, even if one put to one side Part 15 rule 2, in the context of the whole statement of claim, there has not been sufficient particularity of the allegation in paragraph 51(jj). This should be remedied.

(viii) Abducting the Plaintiff’s child

“Abduction” of the Plaintiff’s child is referred to in paragraphs 27, 54, and 56 of the statement of claim although there are other references to the Plaintiff being deprived of her child. The statement of claim makes clear the circumstances in which the Plaintiff claims her child to have been taken from her and claims that the Defendants, including the Seventh Defendant, were involved in that event. No further particularity of this allegation is required.

(ix) Wrongfully represented facts to the Plaintiff

The only paragraph which answers this description, apart from those referred to above under the sub-heading “Misleading the Plaintiff” is 51(h) which is in terms:

Wrongly representing to the Plaintiff the nature and extent of the Plaintiff’s right to revoke her consent;

When one has regard to the terms of paragraph 46(h), it is reasonably clear that what is relied on are the matters referred to in that paragraph. However in its reference to “extent” s 51(h) goes further than the terms of the earlier paragraph and particulars of the further matter(s) should be supplied.
Paragraph 53(b) and 53(d) which use the term “fraud” makes it clear that the conduct relied on has been previously specified. I see no need for this identification to be repeated by way of particulars under paragraphs 53(b) and 53(d). There is no occasion to regard those who are likely to be reading the statement of claim as unintelligent.

(x) Unlawfully interfering with the Plaintiff’s domestic and family relationships

The paragraphs that use this expression are 28, 54, 55, 56, and 57. With the exception of paragraphs 28 and 57 the expression is used in a context of “by reason of material facts pleaded the Defendants unlawfully interfered or conspired to interfere with the Plaintiff’s domestic and family relationships”. In paragraph 57 it is said that:

As a consequence of each Defendant’s breaches of duty, statute, the Plaintiff’s lawful right to the custody of her child and freedom from interference with her domestic and family relationships, and the Defendants’ conspiracies, the Plaintiff has suffered injury, loss and damage.

The paragraph is not as happily worded as it might be but I read the reference as “the Plaintiff’s lawful right to … freedom from interference with her domestic and family relationships”. As such the relevant passage is an assertion of a right, not a further “serious allegation” requiring further particularity.
Paragraph 28 alleges that the First to Sixth Defendants “conspired to unlawfully interfere with the Plaintiff’s domestic and family relationships in relation to the child once born”. There is no specification of the circumstances of the conspiracy or of the acts said to constitute or demonstrate it and there should have been.

(xi) Treated the Plaintiff in cruel, inhumane and degrading manner

The only paragraph in which this allegation is made is 51(j) wherein it is alleged that “Each Defendant has breached its or their duty of care owed to the Plaintiff”, including as a particular of breach “treating the Plaintiff in a cruel, inhumane and degrading manner”.
The request for particulars concerning this allegation and the reply made on behalf of the Plaintiff were in the following terms:

Q81   As to paragraph 51(j), (k), (l) of SOC identify the facts and circumstances as to the manner each Defendant identifying the persons acting on behalf of each Defendant, the times, dates and places in respect of each (ill) treatments (sic) particularised:
(a)   Treated the Plaintiff in a cruel? Inhumane and/or degrading manner?
Answer: The Sisters/nurses, staff employed/engaged at the Home and Hospital (the identity of which is presently unknown to the Plaintiff), The Reverend Mother, sister Mary Patrick, Nora Madelaine Sebesfi and Mary Saxby
Whilst the Plaintiff was admitted (and readmitted) as a resident/patient to the Home and Hospital.
(b)   In discriminatory manner by reason of her status as an unmarried mother?
Answer: The Plaintiff repeats her answer at paragraph (a) above.
(c)   In a discriminatory manner by reason of her status as an aboriginal girl?
Answer: The Plaintiff repeats her answer at paragraph (a) above.

The reply does not include a response to the request for particulars of the “facts and circumstances as to the manner each Defendant” treated the Plaintiff in the manner complained of in this allegation. Given the extent to which the Plaintiff is seeking to attribute to the Seventh Defendant actions of other Defendants, the Seventh Defendant is entitled to this further information either by reference to matters already alleged in the statement of claim or further particularisation if additional matters are relied on.

(xii) Conspiring with others to procure the abduction of the Plaintiff’s child

The paragraphs making this allegation are paragraphs 27 and 56. Paragraph 27 is in terms:

The First to Sixth Defendants themselves and through their servants and/or agents including nuns and social workers engaged at the Home and the Hospital conspired to procure the abduction of the Plaintiff’s child once born.

The request for particulars did not seek any more information concerning the allegation but as I said in respect of the allegation of conspiracy in paragraph 28, “there is no specification of the circumstances of the conspiracy or of the acts said to constitute or demonstrate it and there should have been”.
To summarise, of what are described as the 12 “very serious allegations” listed on the first page of the 28 November letter, further particulars are required in relation to those I have numbered (ii), (iii), (vi), (vii), (ix), (x), (xi) and (xii) but not in relation to the others.
Part 15 rule 1 of the UCPR provides that a pleading must give such particulars of any claim as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. The further particulars I have identified should have been provided as required by that rule. Given the first prayer in the notice of motion and the terms of s 61 of the Civil Procedure Act 2005 (NSW), subject to further remarks made below, it seems to me that it should be sufficient if I make an order in the following terms, even if the orders do not have as much precision as is generally desirable:

Order the Plaintiff to supply to each of the Defendants further particulars:
as identified in sections (ii), (iii), (vi), (vii), (ix), (x), (xi) and (xii) of reasons delivered today, and
as identified in paragraphs 3 and 9 of reasons delivered today.

Counsel for the Seventh Defendant sought that I go further, strike out the statement of claim and, as there was no request to replead, not grant leave to do so. Those more draconian steps are unjustified at this relatively early stage of the proceedings and accordingly I will not adopt the Seventh Defendant’s counsel’s submissions.

I would add this. The written submissions provided by the Plaintiff dealt with more matters than I have above. For reasons indicated in [43] above, I make no decision on the additional matters raised. However it might be of benefit to the parties if I indicated that my impression is that insufficiently particularised are:

all of the allegations of conspiracy;

the allegation in paragraph 44 (and 25, 40 and 51(c)) that the Plaintiff at all maintained that she wished to keep her child;

the allegation in paragraph 50(f) that the Defendants had “knowledge that the Plaintiff was reliant upon them to exercise due care”.

The rationale for the impression recorded in paragraph (b) is that some of the matters alleged seem to have occurred prior to the Seventh Defendant’s involvement with the Plaintiff. The rationale for the impression recorded in paragraph (c) is that, given that the allegation in paragraph 50(f) is of knowledge of the Plaintiff’s thoughts or actions, there is a deal to be said for the view that the exception as to knowledge in Part 15.4 should not relieve the Plaintiff from the general obligation to provide particulars sufficient to enable a party to know the case that party is required to meet.
Another complaint made in those submissions is that the Plaintiff has not complied with Part 15 rule 12 by serving as soon as practical after the serving of the statement of claim a variety of documents bearing on the topic of damages. It is submitted that the Court should exercise its powers under s 61 or the Civil Procedure Act and order compliance with that rule.
However, it seems not unlikely that there will be a major issue whether the Plaintiff’s claim is barred by a period of limitation. It also seems not unlikely that there will be other major issues concerning liability. Furthermore, insofar as one can judge from the request for particulars it seems not unlikely that those acting for the Seventh Defendant will make the conduct of proceedings on the Plaintiff’s behalf difficult. In these circumstances there is much to be said for the view that the Plaintiff should not be put to expense, such as that involved in complying with Part 15 rule 12 that might be entirely wasted or at least allowed to defer that expense until it becomes obvious the expense is necessary. It may be that such deferral should be on terms such that the Plaintiff provides some reasonable particulars of the damages claimed.
There is no doubt that the statement of claim could well have been drafted better. I have commented on the inconsistency in dates and the apparent lack of consistency in the use of the expressions “duress, undue influence and improper means” to which one might add “emotional abuse” and treatment of the Plaintiff “in a cruel, inhumane and degrading manner”. The basis for attributing to the Seventh Defendant actions prior the birth of the child is also not obvious. It might well be also that the provision of the further particulars the subject of my order could be effected in a more orderly fashion in a re-drafted statement of claim. I certainly do not mean to suggest that the particulars to which I have specifically referred in these reasons are all that the Plaintiff should supply.
Liberty to amend was not sought. However it is inconceivable that if sought it would not be granted, at least once, and accordingly in the spirit of ss 56, 58(1) and 64 of the Civil Procedure Act I propose to grant liberty to amend within 28 days. The Plaintiff does not, of course, have to exercise that liberty and costs consequences will presumably follow if she does but granting leave now will hopefully obviate the necessity for one application and appearance.
There remains the question of costs. About 90% of the time of hearing was taken up with argument centred round the hundreds of questions in the request for particulars and both the Plaintiff and Seventh Defendant’s written submission were centred around those issues. On them the Seventh Defendant lost.
However the Seventh Defendant did succeed in respect of most of the issues I have numbered (i) to (xii). Subject to one matter, I incline to the view that each party should pay her or its own costs of and incidental to the notice of motion. Nevertheless, the matter was not debated and I propose to reserve costs.
The one matter concerns the request for particulars. It was, as I have said, an abuse of process and there is something to be said for its author being made responsible for the costs associated with or consequent on it. Counsel for the Defendants indicated that he was. Accordingly, these reasons should be taken by him as notice under s 99 of the Civil Procedure Act.
There is something to be said for the view that the matters should be stood over for longer than 28 days. However, I will not be available during any substantial part of June or July and, accordingly, I propose to stand the matter over for mention to some date convenient to the persons involved later this month.
My formal orders are:

Order the Plaintiff to supply within 28 days to each of the Defendants further particulars:

as identified in sections (ii), (iii), (vi), (vii), (ix), (x), (xi) and (xii) of reasons delivered today, and

as identified in paragraphs 3 and 9 of reasons delivered today,

provided, however, that the Plaintiff need not supply such particulars if she elects to file an amended statement of claim within that period and provides such of the particulars ordered as are relevant to that amended statement of claim.

Grant liberty to the Plaintiff to file an amended statement of claim within 28 days.
Reserve the question of costs.
Stand the proceedings over for mention before me on 27 May 2015.

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Decision last updated: 15 May 2015

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Lynda Margaret Holden v Trustees of the Sisters of Mercy (North Sydney) Property Trust [2015] NSWSC 565

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Medium Neutral Citation:	Lynda Margaret Holden v Trustees of the Sisters of Mercy (North Sydney) Property Trust [2015] NSWSC 565
Hearing dates:	2 April 2015
Date of orders:	15 May 2015
Decision date:	15 May 2015
Jurisdiction:	Common Law
Before:	R S Hulme AJ
Decision:	1. Order the Plaintiff to supply within 28 days to each of the Defendants further particulars: (a) as identified in sections (ii), (iii), (vi), (vii), (ix), (x), (xi) and (xii) of reasons delivered today, and (b) as identified in paragraphs 3 and 9 of reasons delivered today, provided, however, that the Plaintiff need not supply such particulars if she elects to file an amended statement of claim within that period and provides such of the particulars ordered as are relevant to that amended statement of claim. 2. Grant liberty to the Plaintiff to file an amended statement of claim within 28 days. 3. Reserve the question of costs. 4. Stand the proceedings over for mention before me on 27 May 2015.
Catchwords:	PRACTICE AND PROCEDURE – request for particulars – unduly burdensome – abuse of process – no obligation to answer questions – insufficient particulars in statement of claim – liberty to amend
Legislation Cited:	Adoption of Children Act 1965 (NSW) Civil Procedure Act 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Lynda Margaret Holden (Plaintiff) Trustees of the Sisters of Mercy (North Sydney) Property Trust (First Defendant) Philomena Ryman (Second Defendant) The Executor of the Estate of the Late Canisius Lussick (Third Defendant) The Executor of the Estate of the Late Eugene Kinsmore (Fourth Defendant) The Executor of the Estate of the Late Christina Harcombe (Fifth Defendant) The Executor of the Estate of the Late Marie Agnes Hutchinson (Sixth Defendant) The Trustees of the Society of St Vincent de Paul (NSW) (Seventh Defendant) John Francis Davoren (Eighth Defendant)
Representation:	Counsel: A C Bartley SC (Plaintiff) M Joseph SC (Seventh Defendant Solicitors: Porters Lawyers (Plaintiff) Hunt & Hunt (Seventh Defendant)
File Number(s):	2014/308587