Forced adoption claim: Interlocutory argument regarding particulars

Partly pleaded against a defendant on the basis of its operation of a hospital, Lynda Margaret Holden v Trustees of the Sisters of Mercy (North Sydney) Property Trust [2015] NSWSC 565 dealt with an interlocutory debate about the extent of a request for particulars by one of the defendants, said to extend to more than 750 questions (at [19]).

Should the claim proceed to a hearing, it appears that the court will be called on to address a claim that in or about October or December 1970, a the claimant 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: [2].

The court formed the view (at 38]) that the request for particulars was an abuse of process, 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.

The court at [86] noted that there was something to be said for making the author of the particulars request  responsible for the costs associated with or consequent on it. Accordingly, the court held that the reasons should be taken as notice under s 99 of the Civil Procedure Act which relates to the liability of a legal practitioner for unnecessary costs.

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