Delaying judgment to chase documents already refused: solicitors ordered to pay indemnity costs

In Lamont v The Royal Women's Hospital (No 4) [2026] VSC 687, the Supreme Court of Victoria (Judd J, Common Law Division, Institutional Liability List) decided who should pay for a last-minute application to stop the Court delivering its judgment in a forced adoption negligence claim. The plaintiff's solicitors had asked the Court to hold off judgment while they sought four historical documents and a reopened trial. The Court refused, and in this ruling ordered the plaintiff's solicitors personally to pay both defendants' costs of it, on an indemnity basis. The important point is that pressing an application built on documents the Court had already refused, and which the solicitors had earlier chosen not to pursue, was found to be an abuse of process and a breach of the solicitors' duty to the Court. All paragraph references below are to the judgment.

Why it matters: Personal costs orders against lawyers are exceptional, but this ruling shows when one will be made. A hopeless application is not enough on its own. What tipped the balance was re-running a point the Court had already decided, after a deliberate decision not to pursue the documents at trial ([48]–[49], [53]).

At a glance

• Court and level: Supreme Court of Victoria, Common Law Division, Institutional Liability List (single judge, first instance)
• Area of law: Costs; solicitors' duties to the court; civil procedure (reopening a case before judgment)
• Decision type: Ruling on an application for costs against a party's solicitors (a non-party costs order)
• Outcome: The plaintiff's solicitors must pay both defendants' costs of the application to defer judgment ([51])
• Basis of costs: Indemnity basis ([53])
• Standard applied: A discretionary power to award costs against a non-party, used only in exceptional cases ([16])

🧩 Facts and Issues

Background

The plaintiff brought a negligence claim alleging that she had been coerced or forced to give up her baby for adoption. Against the second defendant, her case centred on an assertion that she had not consented to the adoption. Against the first defendant, the hospital, it centred on an assertion that the removal of her baby from the hospital to a babies' home had no basis in law ([1]). Judgment on that claim was delivered separately on 31 July 2026 ([1]). This ruling does not deal with its merits.

How the case got here

• Judgment was listed for 30 July 2026 ([5]). On 29 July 2026, the plaintiff filed a summons asking the Court not to deliver judgment until a County Court application in a different forced adoption proceeding had been decided, and until an application to reopen the trial had been made ([6]).
• That County Court application sought to release the plaintiff and her solicitors from their Harman obligations over four documents. These obligations stop documents produced under compulsion in one case being used for other purposes. The documents included a 1958 almoner department report and a 1965 midwifery lecture ([7]–[8]).
• On 30 July 2026, the Court heard and refused the application to defer judgment ([11]).
• Both defendants then applied for an order that the plaintiff's solicitors pay their costs of the deferral application ([2]–[3]).

What each side argued

• Both defendants sought their costs of the deferral application from the plaintiff's solicitors, on an indemnity basis ([3]).
• The plaintiff's solicitors argued that no order should be made against them. In the alternative, any order should be limited to the first defendant's costs of preparing for and attending the application, on the standard basis ([4]).
• The plaintiff did not seek to be separately heard on the costs application ([15]).

The issues

• Should the plaintiff's solicitors personally pay the defendants' costs of the failed application to defer judgment?
• If so, should the order cover both defendants or only the first?
• Should costs be paid on the standard basis or the indemnity basis?

⚖️ Applicable Law – Legislation, Rules and Principles

• Supreme Court Act 1986 (Vic) s 24: the Court may order costs against a non-party, including a party's solicitors. Such an order is exceptional, which means "no more than outside the ordinary run of cases" ([16]).
• Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.23: costs a solicitor caused to be incurred "improperly or without reasonable cause" ([17]). Not directly engaged, as no costs order had been made against the plaintiff, but all parties agreed its principles applied ([18]).
• Civil Procedure Act 2010 (Vic) s 29(1)(a) and ss 7(1), 8: a lawyer who breaches an overarching obligation can be ordered to pay costs. The application was not brought under s 29, but the Act's overarching purpose of "just, efficient, timely and cost-effective" resolution was still relevant ([19]–[20]).
• A solicitor's duty to the court includes not abusing its process and not maintaining futile proceedings ([21]).
• Reopening a case before judgment: the overriding question is whether, taken as a whole, the justice of the case favours reopening. Relevance alone is not enough. The court also considers how important the evidence is and why it was not called at the hearing ([24]–[27]).
• Indemnity costs: abuse of process is a recognised ground for indemnity costs, but such an order does not follow automatically. The facts of each case must be considered ([52]).

📌 Authorities Relied On

• Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1: the meaning of "exceptional", a solicitor's duties to the court, and the difference between a hopeless case and a hopeless case advanced in breach of duty ([16], [21]–[22], [49]).
• Harman v Secretary of State for Home Department [1983] 1 AC 280: the obligation not to use compulsorily produced documents for other purposes ([7]).
• Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1: the overriding test for leave to reopen ([24]).
• Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22: the four recognised classes of reopening ([25]).
• Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355: the importance of the evidence and why it was not called at trial ([26]–[27]).
• Abdou v Trowsdale (No 2) [2026] VSC 224: abuse of process and indemnity costs ([52]).

🧠 Analysis

Issue

Should the plaintiff's solicitors personally bear the costs of the failed deferral application, and on what basis?

Rule

A costs order against a party's solicitors is exceptional. The Court must distinguish between a merely hopeless case and a hopeless case advanced in breach of the solicitor's duty to the Court, and a breach of duty may more readily be found where there has been an abuse of process ([16], [22]).

Application

The deferral rested on a reopening bid that was destined to fail

The deferral was premised on a later application to reopen the trial ([23]). The Court found it should have been apparent from the outset that any reopening bid was destined to fail, for five reasons: the documents were at best peripheral; the solicitors knew about them well before trial; a notice to produce one of them had been abandoned on the first day of trial; the documents were likely covered by a discovery application the Court had already refused; and an earlier attempt to be released from the Harman undertaking had also been refused ([28]).

The documents did not grapple with the case as pleaded

The submissions about the most significant document, the 1958 report, did not engage with the case as pleaded and run. Senior counsel accepted that the real question at trial was what the plaintiff had said about keeping her child ([30]–[31]). The midwifery lecture concerned medical risks, but there was no medical negligence claim ([35]–[36]). The arguments about the other two documents also missed the issues for decision ([37]–[39]).

The documents were known about and had already been pursued and refused

The solicitors had at least two of the documents from at least December 2025, and knew of the existence, or possible existence, of all four before trial ([40]–[41]). The Court was satisfied that the plaintiff's discovery summons, which it refused on 28 April 2026, captured three of the documents and most likely the fourth ([42]–[44]). No more targeted discovery request followed. Instead, a notice to produce was served and then abandoned on the first day of trial ([45]–[47]).

Not just a hopeless case, but an abuse of process

The Court had already refused discovery of the very documents relied on, and a deliberate decision had been made not to pursue them before trial. In those circumstances, the Court was satisfied that the solicitors had progressed an application that was an abuse of process ([48]). This was not simply a "hopeless case per se". Even bearing in mind that the plaintiff had not waived privilege in her communications with her lawyers, the Court found that the solicitors acted in a way that was "entirely unreasonable and unjustified", in breach of their duty to the Court and contrary to the objectives of the Civil Procedure Act ([49]).

Both defendants were affected

The most significant document was said to be relevant to the case against both defendants, and might have required a witness employed by the second defendant to be recalled. Both defendants had to review the documents and attend court ([50]). The solicitors' alternative argument, that only the first defendant should recover, therefore failed ([51]).

Why indemnity costs

Indemnity costs do not follow automatically from an abuse of process ([52]). Here the application was both an abuse of process and lacking in merit, and the solicitors had breached their duty to the Court, so indemnity costs were warranted ([53]). The defendants' failure to try to agree the amount first did not change the result ([54]).

Conclusion

The plaintiff's solicitors must pay both defendants' costs of the deferral application on an indemnity basis ([51], [53]). The finding of abuse of process and breach of duty relates to that application only. It is not a finding about the merits of the plaintiff's underlying claim.

🏛️ Outcome, Orders and Costs

• The plaintiff's solicitors are to pay the first and second defendants' costs of the application to defer delivery of judgment ([51]).
• Those costs are to be paid on an indemnity basis ([53]).
• The ruling does not state an amount. The formal orders are not set out in the published reasons.
• The judgment does not mention any appeal.

🧭 Practical Lessons

• For self-represented litigants: Reopening a case after final submissions is not automatic. You must show that the justice of the case favours it, that the new material really matters to the issues as pleaded, and why it was not used at trial ([24]–[27]).
• For self-represented litigants: If the court has already refused you documents, asking again in another form without a real change is likely to fail and may attract a costs order ([28], [48]).
• For practitioners: A personal costs order needs more than a weak application. Re-litigating a point the court has already decided, after a deliberate choice not to pursue it at trial, can turn a hopeless application into an abuse of process ([48]–[49]).
• For practitioners: Test late evidence against the pleadings and the issues actually run at trial ([31], [36]–[39]).
• For practitioners: Unwaived client privilege did not stop the Court finding a breach of duty on the documented history of the proceeding ([49]).

🧠 Take-Home Lesson

• A hopeless application is one thing. Pressing an application the court has, in substance, already rejected can be an abuse of process.
• Solicitors who run such an application risk paying the other side's costs personally, and on an indemnity basis.
• Before asking a court to delay judgment or reopen a trial, check that the evidence is central, new, and properly explained.

"Lost the discovery fight? Don't re-run it on the eve of judgment. The costs may land on the lawyers."

This digest is general information about a published judgment, not legal advice. For advice about your own situation, speak to a lawyer, Legal Aid or a community legal centre.