Powell v Monash Health

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2024 03585

BETWEEN:

MARGARET POWELL	Plaintiff
v
MONASH HEALTH & ANOR	Defendants

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2025
DATE OF RULING:	17 April 2025
CASE MAY BE CITED AS:	Powell v Monash Health & Anor
MEDIUM NEUTRAL CITATION:	[2025] VSC 210

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PRACTICE AND PROCEDURE – Discovery – Institutional Liability List proceedings and application of s 83 of the Adoption Act 1984 (Vic) – Application brought by party who is successor in law to a private adoption agency – Question of whether the Court is empowered to order discovery given the operation of s 83 of the Adoption Act 1984 (Vic) – Orders for discovery made by consent.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Hutchinson	Shine Lawyers
For the First Defendant	MinterEllison
For the Second Defendant	Ms R Ellyard	Nevett Ford Lawyers

Contents

Introduction

Evidence

Pleadings

Discovery

Analysis

Conclusion

HER HONOUR:

Introduction

This ruling concerns the discovery of records and s 83 of the Adoption Act 1984 (Vic) (‘Adoption Act’). Anglicare Victoria (‘Anglicare’), the second defendant, makes the application as a successor in law to a private adoption agency. It wishes to discover relevant records but is concerned about the application of s 83. The other parties also wish the records be discovered. The question for determination is whether the Court has power to order discovery given the operation of s 83.
I am satisfied the Court has power to order discovery notwithstanding s 83 of the Adoption Act. My reasons follow.

Evidence

I have read the affidavit of Anglicare’s ‘General Manager [for] Quality & Review, Quality and Outcomes’, Meaghan Courtney, affirmed on 18 December 2024.

Pleadings

The plaintiff, Ms Powell, is claiming damages, including aggravated and exemplary damages, in respect of psychological injuries she alleges arose following the care and treatment she received from Monash Health, the first defendant, and Anglicare during and after her pregnancy when she was 15 years old.[1]
[1]Statement of claim filed by the plaintiff on 12 July 2024 (‘statement of claim’), [45]-[46], [50].
It is uncontroversial that in 1969 Ms Powell, who was pregnant at the time, was admitted to Kedesh Maternity Home (‘Kedesh’) operated by the mission of St James and St John (the ‘Mission’).[2] Ms Powell claims that, contrary to her intention to keep her baby, agents of the Mission informed her that she had no choice but to give up her baby for adoption.[3] In response, Anglicare and Monash Health say contemporaneous evidence states, among other things, that Ms Powell’s attitude at the time of the pregnancy was that she was ‘too young’.[4]
[2]Ibid, [7]; defence filed by the second defendant on 21 August 2024 (‘second defendant’s defence’), [7].
[3]Statement of claim, [6], [10].
[4]Defence filed by the first defendant on 13 January 2025 (‘first defendant’s defence’), [6]; second defendant’s defence, [6].
It is uncontroversial that on 11 November 1969, Ms Powell was admitted to Queen Victoria Hospital (the ‘Hospital’), currently operated by Monash Health. Ms Powell alleges that the Hospital’s conduct before the birth was ‘forceful, cold, [and] undertaken without instructions’; that while in labour, she was not provided with guidance or advice regarding the birthing process; and that she was pinned down and not administered analgesics during labour.[5] These allegations are not admitted by Monash Health. It says, among other things, that a paediatric registrar described the labour as being 42.5 hours long, involved the artificial rupture of membranes, and that anaesthetic and sedatives were administered.[6]
[5]Statement of claim, [14], [16]-[17].
[6]First defendant’s defence, [14], [16]-[17].
On 12 November 1969, Ms Powell gave birth to a baby girl. Following the birth, she says she was not permitted to see or hold her baby who had been taken away.[7] Ms Powell further claims that while alone and before leaving the Hospital, she was sexually assaulted by an unknown man.[8]
[7]Statement of claim, [18]-[19].
[8]Ibid, [21].
On 3 February 1970, Ms Powell alleges that she was coerced into signing adoption paperwork (the ‘Paperwork’) by the Hospital.[9] In response, Monash Health denies any coercion and further contends that Ms Powell was taken to the Mission by her mother and it does not know the circumstances under which she was taken.[10] Similarly, Anglicare does not admit such allegations. It says Ms Powell signed a form of consent, the nature of which was explained by an adoption officer.[11]
[9]Ibid, [24]-[29].
[10]First defendant’s defence, [24]-[29].
[11]Second defendant’s defence, [24]-[29].
Although Monash Health admits, under cover of objection, that it owed Ms Powell a duty of care to ‘take reasonable precautions to mitigate the risk of her being exposed to any foreseeable risk of injury’, it denies a breach of this duty.[12] Further, it denies any intent to cause harm or breach of a statutory duty.[13]
[12]First defendant’s defence, [30(b)], [35].
[13]Ibid, [36], [43].
Similarly, Anglicare admits it owed Ms Powell a common law duty of care to avoid reasonably foreseeable injury, however denies any breach of that duty.[14] It further denies it owed Ms Powell a duty of care arising from its status as a private adoption agency.[15] Additionally, it does not admit any intention to cause Ms Powell harm and denies breach of a statutory duty.[16]
[14]Second defendant’s defence, [30.3], [35].
[15]Ibid, [30.4].
[16]Ibid, [36], [43].
Neither Monash Health or Anglicare admit Ms Powell suffered injury, loss or damages as a consequence of their actions. Additionally, they say her claim is made out of time.[17]
[17]First defendant’s defence, [45]-[46], [51]; second defendant’s defence, [45]-[46], [51]-[52].

Discovery

On 28 August 2024, Baker JR made orders setting down an interlocutory timetable, which relevantly provided that the parties were to make discovery by 26 November 2024. By summons filed on 18 December 2024, Anglicare sought, amongst other things, discovery ‘in consideration of and notwithstanding the operation of s 83 of the Adoption Act’.
On 13 February 2025, the parties provide a signed minute of consent (the ‘proposed consent orders’). The proposed consent orders sought the following:
THE COURT ORDERS BY CONSENT THAT:
1. The Orders made on 28 August 2024 be amended to include under the heading “Discovery and interrogatories” orders in the following terms:
a. Despite any limitation imposed by section 83 of the Adoption Act 1984 (Vic), the Second Defendant make discovery of relevant records of or in the possession or under control of the Second Defendant as the successor in title and carrying the legal liabilities of the Mission of St James and St John, an organisation approved as a private adoption agency under the Adoption of Children Act 1964 (Vic).
b. In complying with order (a) above, the Second Defendant be permitted to redact or not provide information that does not directly relate to the approved adoption agency and the Plaintiff.
Anglicare made written submissions in support of the proposed consent orders.
During the hearing of Anglicare’s application on 14 March 2025, the Court was assisted by the oral submissions of Ms Ellyard on behalf of Anglicare. These submissions were supported by Mr Hutchinson on behalf of Ms Powell. It is unnecessary to reiterate the submissions here. They have been considered in the analysis.
After the hearing, I made the proposed consent orders and informed the parties that written reasons would follow. This ruling contains my reasons for making the proposed consent orders.

Analysis

Section 83 of the Adoption Act contains a restriction on the release of records.
83 Restriction on access to reports and records
(1) Except as provided in this Act—
(a)records of or in the possession or under the control of the Secretary or an agency relating to an adoption negotiated or arranged by the Secretary or an agency or any part of such records; and
(b)a report to a Court under section 15 or any corresponding previous enactment and the records of a Court of or relating to proceedings (other than an order or decision of a Court) under this Act or any corresponding previous enactment—
shall not be made available to, or be open for inspection by, any person.
(2)Where, by reason of subsection (1), a report to a Court is not to be made available or open for inspection, a copy of the report or of any part of it shall not be made available or be open for inspection notwithstanding that such a copy or part may be contained in records from which information may be available under this Part.
(3)Nothing in this section prevents the Secretary or an approved agency making available to a person who has made application to adopt a child any information referred to in paragraph (a) or (b) of section 84(2) that relates to the application by that person.
Section 55 of the Civil Procedure Act 2010 (Vic) provides that a court may make any discovery orders or directions it considers necessary and appropriate.
Rule 29.05.1 of the Supreme Court (General Civil Procedure) Rules 2015 provides that the Court may order any party to give discovery at any stage of the proceeding.
Whether a particular secrecy or immunity provision will preclude the Court from making orders for discovery of documents that fall within its scope is ultimately a question of construction.[18] However, in recognition of the important role of the discovery process and the power of the Court to compel production of documents in a civil proceeding, any limitation on this power will not be inferred lightly.[19] It has been suggested that clear legislation would be required to broaden the categories of exception to the requirement to produce relevant documents which will assist the court in adjudicating the issues in dispute in a proceeding.[20]
[18]Smith v Victoria Police (2012) 36 VR 97 (‘Smith v Victoria Police’), 108 [43], 109 [45]; State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358 (‘State v Intralot’), [69].
[19]Sanko Steamship Co Ltd v Sumitomo Australia Ltd (1992) 37 FCR 353 (‘Sanko Steamship’), 360.
[20]Smith v Victoria Police, 108 [42].
As such, courts have typically only been willing to uphold an objection to discovery or production of documents where the secrecy provision relied upon contains an express limitation on the power of the court to compel the production of documents[21] – and even then, discovery may still be ordered in an appropriate case.[22] Further (and relatedly), it has been repeatedly recognised that the words ‘any person’, when used in the context of an immunity or secrecy provision, will not apply to a court.[23]
[21]See, for example, Northern Territory v GPAO (1999) 196 CLR 553 (‘NT v GPAO’); State v Intralot.
[22]See Commissioner of Taxation (Cth) v Nestle Australia Ltd (1986) 12 FCR 257 (‘Commissioner v Nestle’), 261–262.
[23]Commissioner v Nestle, 262; Sanko Steamship, 360; Javorsky v Commissioner of Taxation (2005) 216 ALR 619, 623 [17]. See also Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, 6 (Dixon CJ).
Whether s 83 of the Adoption Act precludes the Court from ordering discovery of adoption records ultimately turns on the proper construction of that provision. Although the ordinary meaning of the words ‘shall not be made available to, or be open for inspection by, any person’ would indicate a broad scope of operation, it nevertheless seems unlikely that this would encompass the discovery process. Notably, there is no specific reference to the restriction applying to the Court or in civil proceedings, as would generally be required to limit the Court’s powers in relation to discovery. Given it has been repeatedly recognised that the words ‘any person’ do not apply to a court it would therefore appear that s 83 would not operate to prevent disclosure in a civil proceeding in any event.
Nor does anything in relevant extrinsic materials suggest that s 83 is intended to broaden the exclusions to discovery by preventing adoption records from being disclosed in a civil proceeding. Instead, the function of Part VI of the Adoption Act, relating to access to information, is to protect the privacy of adopted children and their birth and adoptive parents. As explained in the second reading speech for the Adoption Bill 1984 (Vic):
These measures have been developed with a view to the interests of adopted children, their adoptive parents and their blood relations with respect for the privacy of each party. The overriding principle in determining the new access provisions is that the interests and welfare of the child are paramount. [24]
[24]Victoria, Parliamentary Debates, Legislative Assembly, 2 May 1984, 4249-4250 (Pauline Toner, Minister for Community Welfare Services).
Neither this objective nor the interests and welfare of the child[25] would be impaired or hindered by construing s 83 so as to exclude from its scope court-ordered discovery processes, provided due consideration is given to whether any confidentiality orders may be necessary.
[25]Which, pursuant to s 9, must be regarded as the paramount consideration in the administration of the Adoption Act 1984 (Vic) (‘Adoption Act’).
There does not appear to be any direct authority on s 83 of the Adoption Act and its relationship with court-ordered discovery processes. However, guidance can be taken from a number of other cases involving applications for discovery made in respect of information protected or partly protected by secrecy or immunity provisions.
For example, in Commissioner of Taxation v Nestle Australia Ltd,[26] the Full Federal Court considered an appeal against interlocutory orders for discovery and inspection of documents made in a judicial review proceeding. The plaintiff in that proceeding, Nestle Australia Ltd, was seeking review of a decision made by the Commissioner of Taxation to refuse an application for an extension of time for payment of income tax. The Commissioner alleged that certain documents were privileged from production (and therefore immune from discovery and inspection) in the proceeding in light of s 16 of the Income Tax Assessment Act 1936 (Cth), subs (2) of which prohibited an ‘officer’ from ‘divulg[ing] or communicat[ing] to any person any information respecting the affairs of another person’ acquired in the course of performing duties as an officer, ‘except in the performance of any duty as an officer’.[27] In rejecting the Commissioner’s objection, Bowen CJ, Lockhart and Sheppard JJ held that the words ‘in the performance of any duty as an officer’ ought be given a very wide interpretation, so as to include any court proceedings relating to the imposition, assessment or collection of revenue. Their Honours further observed that:[28]
There is another, but independent, ground for rejecting the Commissioner’s argument that s 16(2) applies in this case to bar discovery and inspection. The prohibition imposed by the subsection is against divulging or communicating information to “any person” and this plainly could not apply to a court.[29]
[26]Commissioner v Nestle.
[27]Relevantly, s 16(3) of the Income Tax Assessment Act 1936 (Cth) also provided that an ‘officer’ would not be required to produce in court any return, assessment or notice of assessment, or to divulge or communicate to any court any matter or thing coming under his or her notice in performing duties as an officer, except where necessary to do so to give effect to that Act or other laws relating to income tax. However, the Commissioner was likewise unsuccessful in attempting to rely on this subsection to resist discovery: see Commissioner v Nestle, 262-264.
[28]Commissioner v Nestle, 262.
[29]Citing Hutchins v Federal Commissioner of Taxation (1986) 86 ATC 4549, 4553 (Jenkinson J); Re Fortex Pty Ltd (1986) 86 ATC 4351, 4358 (Enderby J).
Similar conclusions were reached in Sanko Steamship Co Ltd v Sumitomo Australia Ltd.[30] Prior to trial of an action in respect of the destruction and loss of a vessel and its cargo, an issue arose as to whether certain documents in the possession of the Department of Transport and Communications ought to be made available for inspection. The Department relied upon regulation 15 of the Navigation (Marine Casualty) Regulations 1990 (Cth), which prohibited the divulging of evidentiary documents arising out of an investigation ‘to any person other than’ certain specified persons, to resist producing the relevant documents. In making orders for discovery, Sheppard J referred to a ‘clear preponderance of authority’ for the view that the words ‘to any person’ in a context such as this did not apply to the court.[31] His Honour further explained:[32]
Courts entrusted with the task of settling disputes between citizens have an important public function. There is a public interest in the proper administration of justice. The powers of courts to compel the production of documents have an ancient origin and have been restated and, in the case of courts having a statutory origin, re-enacted many times. This Court’s powers to compel the production of documents are provided for in the Federal Court of Australia Act 1976 (Cth) … and the rules made pursuant thereto ... One would not lightly infer that those powers were circumscribed in any way. That is why the legislature, when enacting the Income Tax Assessment Act, has been careful to include in s 16 an express provision limiting the powers of courts to compel the production of documents. Even so, the courts have nevertheless held that the Commissioner remains, in an appropriate case, obliged to give discovery of documents in a case in which he is a party.[33]
[30]Sanko Steamship.
[31]Ibid, 359.
[32]Ibid, 360 (original citations).
[33]Commissioner v Nestle, 261–262.
This passage was later quoted and adopted in Smith v Victoria Police.[34] Here, the plaintiff had brought a claim under s 19 of the Whistleblowers Protection Act 2001 (Vic) (‘Whistleblowers Protection Act’) for damages allegedly suffered by reason of detrimental action taken against him in reprisal for disclosures he made of improper conduct on the part of other police officers. The State discovered certain files in the possession of the Chief Commissioner of Police, but objected to their production. It did so in reliance on s 22 of the Whistleblowers Protection Act, which provided that a person who obtained or received information in the course of a protected disclosure or investigation under the Act was not to disclose that information except for certain purposes, including the exercise of the Chief Commissioner’s functions under the Act and in certain criminal and disciplinary proceedings. After a challenge to the State’s objection was dismissed by an associate judge, the plaintiff appealed. In allowing the appeal and granting leave to the plaintiff to inspect the documents, Ferguson J relevantly observed:
The importance of the discovery process in litigation should not be forgotten. There are exceptions to the production by a party of relevant documents and limitations that the court may impose on the breadth of discovery to be given. However, clear legislation would be required to broaden the exclusions from the requirement to produce relevant documents which will assist the court in adjudication of the issues in dispute. [35]
[34]Smith v Victoria Police, 108 [42].
[35]Ibid, 108 [42]–[43].

In State of Victoria v Intralot Australia Pty Ltd,[36] the Victorian Court of Appeal considered whether secrecy provisions in the Gambling Regulation Act 2003 (Vic) (‘Gambling Regulation Act’) precluded an order for inspection of particular discovered documents, or production of those documents at hearings. The State of Victoria, the defendant in a proceeding brought by Intralot Australia Pty Ltd (‘Intralot’) for breach of contract and misleading or deceptive conduct, contended that several hundred documents were exempt from production as they contained information with respect to the affairs of a competitor of Intralot. It was therefore contended that the production of such documents would contravene the secrecy provisions in Division 6 of Part 1 of Chapter 10 of the Gambling Regulation Act.[37] At first instance, orders were made for the State to produce the relevant documents, with the primary judge holding that the provisions in question purported indirectly to alter s 85 of the Constitution Act 1975 (Vic) by modifying, restricting or limiting the powers and authorities of the Supreme Court in relation to discovery, inspection and production of documents.
[36]State v Intralot.
[37]These relevantly included a general duty of confidentiality upon certain ‘regulated persons’ to not make a record of or disclose any protected information acquired by the person in the performance of functions under a gaming Act or gaming regulations (Gambling Regulation Act 2003 (Vic), s 10.1.30); as well as a stipulation that regulated persons were not permitted or required to produce in a court a document that had come into their possession or control or to disclose to a court any protected information that had come to their notice in the performance of functions under a gaming Act or gaming regulations (Gambling Regulation Act 2003 (Vic), s 10.1.31).
Though accepting that ‘the processes of discovery, inspection and production of documents can be very important in litigation’, the Court of Appeal rejected the primary judge’s finding that the relevant provisions were constitutionally ineffective.[38] Instead, whether the provisions would preclude the court from ordering discovery of the relevant documents was held to ultimately be a question of construction.[39] The Court of Appeal found that on their proper construction, the provisions were properly characterised as a form of statutory immunity or privilege, and thus the correct approach for the court to adopt in determining whether the documents in question were exempt from production was ‘no different from what it would be in any other case where privilege or immunity is claimed or otherwise arises’ – that is, to consider and determine whether the claim or immunity is made out and if so, give effect to it.[40]
[38]State v Intralot, [101].
[39]Ibid, [69].
[40]Ibid, [104]–[105].
In reaching this conclusion, the Court of Appeal relied on the High Court’s decision in Northern Territory v GPAO.[41] This case involved an appeal from a decision of the Family Court in a case concerning custody of a child. On the application of the father of the child, a subpoena was issued to the manager of the Child and Family Protective Services unit of the Northern Territory Health Services Department requiring him to produce to the court all files and records in relation to the child. The manager objected to the production of the documents, relying on s 97(3) of the Community Welfare Act 1983 (NT) which then provided that an ‘authorised person’[42] would not be required to ‘produce in a court a document that has come into his possession or under his control’ or ‘disclose or communicate to a court any matter or thing that has come under his notice in the performance of his duties or functions’. The Family Court rejected the manager’s objection, however it was upheld by the High Court. As McHugh and Callinan JJ explained:
Order 28, r 1 of the [Family Law Rules 1984 (Cth)] … provides that the Court may compel production of any document by issue of a subpoena. Neither the Rules nor the Act, however, make mention of a power to compel production of documents which are the subject of a “public interest” privilege deriving from some other source, such as another enactment, State, federal or territorial, or the common law. Section 97(3) of the Community Welfare Act is clearly intended to protect the wider public interest in so far as it shields sensitive documents from the usual processes by which such documents may be made public. The general power conferred by O 28, r 1 of the Family Law Rules should not be construed as authorising the production of documents protected by a specific and narrowly directed provision such as s 97(3), which plainly intends to create an exception to long-established general principles about the procedures governing legal proceedings. [43]
[41]NT v GPAO.
[42]There was no dispute that the manager fell within the definition of ‘authorised person’.
[43]NT v GPAO, 628–629 [195]–[197].

Conclusion

Section 83 of the Adoption Act does not preclude the Court from making discovery orders. Nor does it excuse a party from compliance with its discovery obligations. Accordingly, I made orders by consent that Anglicare discover documents in compliance with discovery orders made earlier in the proceeding.

SCHEDULE OF PARTIES

S ECI 2024 03585
BETWEEN:
MARGARET POWELL	Plaintiff
- v -
MONASH HEALTH	First Defendant
ANGLICARE VICTORIA	Second Defendant

[2025] VSC 210

17 April 2025