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Cases Cited: Onakoya v The Sydney Children’s Hospital Network [2024] NSWSC 1004
Onakoya v The Sydney Children’s Hospital Network (No 2) [2025] NSWSC 614
Agar v Hyde (2000); 201 CLR 552; [2000] HCA 41
Sims v Wran [1984] 1 NSWLR 317

Category: Procedural rulings

Parties: Matthew Onakoya (First Plaintiff)
Olamide Onakoya (Second Plaintiff)
The Sydney Children’s Hospitals Network (Defendant)

Representation: Counsel:
Self-represented (First Plaintiff)
D Sibtain SC (Defendant)
Solicitors:
Self-represented (Plaintiffs)
Hicksons Lawyers (Defendant)

File Number(s): 2023/00347867

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: This judgment determines two Notices of Motion brought by the defendant, and an informal application without the filing of a Notice of Motion brought by the plaintiffs, in the proceedings in the Defamation List. The defendant’s Notices of Motion are dated 19 February 2026 and 13 March 2026. The Motion first in time seeks to set aside extensive portions of Notices to Produce for Inspection served by the plaintiffs on 6 January 2026 and 9 January 2026 respectively. The defendant’s Motion second in time seeks to set aside a Notice to Admit Facts and Authenticity of Documents dated 23 February 2026.

2. The plaintiffs’ make their informal application by written submissions dated 7 February 2026 to strike out substantive proportions of the defendant’s defence and the particulars supporting them under rr 14.28, 14.30 and 14.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). This is a permissible procedure having regard to the degree of informality contemplated by the Practice Note SC CL 4, which governs the procedure in the Defamation List and seeks to promote the efficient dispatch of matters in the list.

3. I pronounced orders resolving these matters on 12 June 2026 reserving my reasons which now follow.

The Nature of the Proceedings

4. The proceedings have been hastening slowly through the Court since they were informally commenced by Statement of Claim instituting proceedings for personal injuries for the plaintiffs’ daughter in 2022 (proceedings 2022/00093689). In 2023, I ordered that the defamation proceedings be brought separately by Statement of Claim and a file number of 2023/00347867 was allocated by the Registry. The litigation has generated many separate interlocutory judgments which need not be listed here. The essential background facts and procedural history is recorded in my judgment of 16 August 2024 (Onakoya v The Sydney Children’s Hospital Network [2024] NSWSC 1004 (“2024 Judgment”)), Rothman J’s judgment of 13 June 2025 (Onakoya v The Sydney Children’s Hospital Network (No 2) [2025] NSWSC 614 “2025 Judgment”)) and the unreported judgment of Hmelnitsky J of 14 November 2025. The current iteration of the Statement of Claim is a document originally filed as the Second Proposed Amended Statement of Claim on 4 July 2025 (“2ASOC”), pursuant to orders made by Rothman J. Following rulings made by Hmelnitsky J on 14 November 2025, the plaintiffs’ case proceeds on the publication of a single alleged defamatory matter on 14 August 2019 conveying a single imputation about and concerning the plaintiffs.

5. In the 2024 Judgment, I fully summarised the background facts as drawn from the documentary material tendered before me (at [4]). This judgment proceeds on the assumption of familiarity with that summary. Rothman J did better than me and succinctly stated the nature of the case in the 2025 Judgment (at [5]-[10]) in the following terms which I gratefully adopt for present purposes:

“[5] The allegedly defamatory material was published in an unusual context for defamation proceedings. On 30 May 2019, the plaintiffs took their three-month old infant daughter to the hospital, being the defendant operating at Westmead, and the general medical resident who attended on the child referred the child to the Child Protection Unit.

[6] On 31 May 2019, the Registrar and social worker, in consultation with a Child Protection Unit Staff Specialist, examined the child.

[7] As a consequence of the examination on 31 May 2019, a report was issued on 11 June 2019 over the signature of the staff specialist who was, and I assume still is, a Forensic Paediatrician at the Child Protection Unit (hereinafter CPU).

[8] As one would expect, the report expresses views. The views relate to the existence of subdural haematomas which were described as ‘highly concerning for a past acceleration-deceleration (shaking) injury’.

[9] A further report was issued on 14 August 2019, which was provided in answer to questions from caseworkers at the Family and Community Services (now known as the Department of Communities and Justice) and the Joint Child Protection Response Program. The report expressed the view that the haemorrhages that existed on the child ‘were highly suspicious for afflicted injury due to acceleration-deceleration (shaking) injury’. This was expressed at a number of points in the report.

[10] Further, the report suggested that the injuries to the child could be ‘explained by a shaking injury having occurred on 12 May 2019 at the time that the symptoms occurred as reported by … [her] parents’. It is unnecessary to deal with the full extent of each of the reports.

The formulation of the plaintiffs’ claim

6. Following Hmelnitsky J’s rulings, the gravamen of the case pleaded in the 2ASOC may be stated as follows:

“[21] On or about 14 August 2019, Dr Susan Marks, acting on behalf of the Defendant, prepared a medical report titled ‘Medical Update Report’ (the ‘Report’) to provide a medical update.

…

[23] The Report stated, in substance: ‘The findings on imaging of [the plaintiffs’ daughter’s] head could be explained by a shaking injury having occurred on 12 May 2019 at the time that the symptoms occurred as reported by [her] parents.’

…

[26] By publishing the Report, the defendant conveyed imputations (sic.) to recipients that:

…

h. [the plaintiffs] were under active suspicion [by Dr Marks] of abuse and neglect.”

Issues

7. By its Defence filed on 19 December 2025, after a joining issue in whole or in part on the averments of material fact in the 2ASOC, the Defendant admits that the report of 14 August 2019 “was reasonably capable of conveying the pleaded imputation”, but does not admit that it did so; raised statutory immunity under s 245G of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”); justification; and common law qualified privilege. In accordance with the usual practice in defamation matters, detailed particulars of justification and qualified privilege are contained in Annexures A and B to the Defence, respectively.

8. While the Reply filed by the plaintiffs, with respect, is more than somewhat discursive, it joins issue with the matters raised in the Defence and denies that the facts pleaded by the defendant and the particulars provided sustain the s 245G immunity, justification and qualified privilege defences. Malice, where applicable, or bad faith does not appear to have been expressly pleaded, although it may be necessarily implicit in the pleading. Certainly, it was a theme that runs through the plaintiffs’ oral submissions, and by necessary implication, run through their written submissions of 17 February 2026. Indeed, paragraph [2] of the first plaintiff’s written submissions filed on 13 March 2026 raises expressly that which, if accepted, would amount to malice.

The plaintiffs’ application for summary dismissal

9. It is convenient to deal first with the plaintiffs’ application for summary dismissal of the defences I have specified. Obviously, if this application were successful, it would affect the nature of the issues to be determined at the trial and affect the decision about setting aside the Notices to Produce and to admit facts challenged by the defendant’s Notices of Motion.

10. From the further written submissions filed on 13 March 2026 (“FWS”), prepared by the first plaintiff, it is clear that the substantial ground of their application is summarised at FWS (2)-(3) in the following terms:

“2. The material demonstrates that the suspicion asserted in the 14 August 2019 medical update document was not reasonable, honest, and not capable of being held in good faith. It was inconsistent with:

a. the radiological findings known to Dr Marks;

b. the conclusions of NSW Police Force, DCJ and the CPU;

c. the Plaintiffs’ daughter’s documented clinical history; and

d. the absence of any new information after discharge on 15 June 2019.

3. The material further demonstrates that the 14 August 2019 document was not a final medical report, was not provided under s 245D of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“CYP Act”), was not prepared in compliance with any statutory obligation, and was instead created in response to informal enquiries. It cannot attract statutory immunity under s 245G, nor can it sustain justification or qualified privilege.”

11. The principles governing the exercise of the Court’s power to summarily dismiss an action, or a defence, are well known and need not be expounded at length for the purpose of the case at hand. To my mind, the governing principles are authoritatively stated with sufficient detail, with respect, in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], where the plurality of Gaudron, McHugh, Gummow and Hayne JJ stated:

“[57] It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court’s jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.” (Footnotes omitted)

Particulars

12. A pleading point that the plaintiffs’ take anterior to the summary dismissal application is that it is necessary for the defendant to plead, as a material fact, when the suspicion held by Dr Marks was formed, and the plaintiffs have sought particulars in this regard which have not been provided. The thrust of the submission is that, in general terms, the timing of the formation of the opinion, on the plaintiffs’ argument, is indispensable to each of the impugned defences. Absent that pleading as a material fact, or the provision of particulars as to “when” the opinion is formed, not precisely in terms of the “hour or clinical moment”, but whether the opinion was formed before or after their infant child was discharged into their care on 15 June 2019.

13. Dealing with this argument first, what is obvious from the careful construction of the plaintiffs’ written submissions is that they seek to demonstrate the defences are untenable by reference to “malice”. That is to say, the plaintiffs’ argument is that no other conclusion is tenable on the documentary evidence than the publication of the putative defamatory matter in the report of 14 August 2019 admits of no other conclusion than it was born of malice.

14. There are a number of difficulties with this argument. First, as I have already indicated, the plaintiffs’ Reply does not plead malice, although I understand from their submissions that they wish to raise it. Secondly, where it is a relevant issue, it is for the plaintiffs to plead and prove it. The plaintiff must plead all the material facts upon which they rely to establish malice. They have not done so. Thirdly, it is impermissible for a party bearing the onus to seek particulars from the opposing party about the former’s case. As Hunt J observed in Sims v Wran [1984] 1 NSWLR 317 at 329:

“An application for particulars is concerned with the adequacy of the particulars supplied by one party to make the other party aware of the case he is called upon to meet. Such an application is not concerned with the adequacy of the particulars supplied to establish the case which that party seeks to make.”

The plaintiffs are not entitled to seek particulars from the defendant of the case they seek to make in relation to malice, and I would reject the argument that the defendant was obliged to plead as a material fact for the defences impugned by the plaintiffs when the opinion was formed. It follows, nor are they obliged to provide particulars of that matter.

The plaintiffs’ argument and consideration

15. The plaintiffs’ carefully constructed argument by reference to the clinical records does not of itself make their case to the required level of certainty for summary disposal. The report of 14 August 2019 is itself evidence that Dr Marks genuinely held the opinion expressed, which forms the basis of the plaintiffs’ single imputation, for the reasons Dr Marks fully explained. More importantly, even were one to conclude that her report was one so completely out of step with the more probable inferences to be drawn from the body of the contemporaneous clinical material, one could not conclude that her opinion was born of malice without giving her the opportunity to give evidence, if called, at the trial. Accordingly, it cannot be said that any of the defences are untenable on the facts. Each will depend in no small measure on whether Dr Marks evidence, if called, is accepted.

16. I will turn then to specific matters raised by the plaintiffs. The plaintiffs’ principal contention is that the defendant’s own pleaded facts negate any alleged suspicion. I take this to be a reference to the detailed particulars provided in Annexure A. The plaintiffs rely principally upon the opinion of a junior medical officer recorded on 4 June 2019 that the left subdural haematoma disclosed by cerebral CT or MRI scan correlated to blood greater than 28 days old. Dr Prelog, a neuro-radiologist, expressed the opinion that the radiology showed old blood. It is sufficient for this present application to answer this contention that Dr Marks’ view was different by reference to a CT scan performed on 30 May 2019 showing substantially the same haemorrhages as the MRI scan. Dr Marks expressed the view that the age of the haemorrhages was more than two to three weeks prior to that date. She emphasised that the timeframe was an approximation only. However, if her opinion was correct, it would be consistent with a shaking injury having occurred on 12 May 2019 as she said on p 4 of her impugned report. Any conflict in this evidence can only be resolved at trial.

17. The next substantive point that the plaintiffs make is that a multi-agency investigation excluded the plaintiffs as “perpetrators”. The central argument here is that their infant child was discharged to her parents’ care on 14 June 2019 and that at a meeting on 11 June 2019, Dr Marks had informed police that the imaging “could not rule out injury occurring in hospital”. That such matter could not be ruled out does not conclusively prove that Dr Marks did not honestly hold the opinion she expressed on 14 August 2019 which is the basis of the imputation pleaded by the plaintiffs. Again, this is a matter for trial. More broadly, however, it misconceives the purpose of the investigation by police. That investigation is concerned with criminal responsibility. The police not proceeding following a doctor indicating that certain matter consistent with the parents’ innocence could not be ruled out is consistent with the criminal standard of proof. It is not a matter relevant to the honesty of Dr Marks’ impugned opinion.

18. It is next submitted that the clinical records demonstrate an “absence of any post-discharge basis for suspicion”. The argument is further developed. First, it should be noted that Dr Marks’ opinion that a matter could not be ruled out does not exclude her continuing to hold the opinion ultimately expressed on 14 August 2019, if that is her evidence in due course. The plaintiffs submit that a suspicion alleged to have arisen two months after the infant child was discharged into their care is incapable of supporting “reasonableness, honesty or good faith”. Again, it is the plaintiffs who are required to prove the absence of these matters at trial. I cannot conclude that no other conclusion is tenable on the papers, without hearing the evidence that may be led at the trial.

19. The plaintiffs submit that the known clinical history contradicted the later assertion of abuse and neglect. It needs to be borne in mind that it is not part of the defendant’s case that the plaintiffs’ perpetrated “abuse and neglect” on their baby. Dr Marks did not say that in the impugned publication. She said, “the findings on imaging of [the baby’s] head could be explained by shaking injury having occurred on 12 May 2019 at the time that the symptoms occurred as reported by [the plaintiffs]”. The submission is not to the point.

20. Moving on specifically to the statutory immunity defence under s 245G of the Care and Protection Act, the plaintiffs argue that the report of 14 August 2019 “was not a statutory report and was not information held” for the purpose of Ch 16A of the Care and Protection Act.

21. Section 245C of the Care and Protection Act authorises the provision of information by one prescribed body to another if the provider reasonably believes that the provision of the information would assist the recipient in the discharge of its functions. Importantly, s 245C(2) provides: “Information may be provided under this section regardless of whether the provider has been requested to provide the information.”

22. Section 245D authorises one prescribed body to request from another any information held by the other that relates to the safety, welfare and wellbeing of a particular child. Contrary to the submissions of the plaintiffs, in my judgment, it is not necessary that a request under s 245D specifically invoke that section. As the plaintiffs acknowledge in their written submissions, by email on 16 July 2019 an officer of DCJ requested additional information from Dr Marks. While there may be room for argument at the trial after evidence received, the material before me is capable of establishing that the report of 14 August 2019 was the provision of information held in response to a request under Ch 16A of the Care and Protection Act engaging the immunity created by s 245G, subject to any case that may be led by the plaintiffs that Dr Marks was not “acting in good faith”. Nor am I of the view, contrary to the plaintiffs’ submission, that information held must be “pre-existing information”. In the recasting of an earlier argument, the plaintiffs submit that there was no statutory basis for reviving suspicion after discharge. The plaintiffs invoke s 8(a), an object of the Care and Protection Act found in Chapter 2. I am not of the view that it does the work ascribed to it by the plaintiffs of limiting Dr Marks responsibilities under the Care and Protection Act to the decision made to discharge the baby into her parents’ care. One may also accept the plaintiffs’ argument that the report of 14 August 2019 was not a “mandatory report “under s 27 of the Care and Protection Act. I am not suggesting that it was incapable of being covered by that section. The point is that the defendant relies upon the regime in Ch 16A not s 27.

23. The plaintiffs allege that the “alleged suspicion” was not reasonable, honest or in good faith. It is important to bear in mind that it is the plaintiffs who raise the “alleged suspicion”. The defendant accepts that the report of 14 August 2019 is capable of giving rise to that suspicion but denies that the suspicion is in fact conveyed. It is for the plaintiffs to prove that the imputation is in fact conveyed. The argument does not assist on a summary dismissal application.

24. Finally, the plaintiffs argue that qualified privilege fails because “no duty-interest reciprocity existed on 14 August 2019”. This is developed at some length in the written submissions. Qualified privilege, at common law, is fact-sensitive and fact-intensive. It therefore depends upon all of the circumstances led in evidence and proved at trial. It is not a defence that is easily receptive to summary dismissal. The evidence before me, including the evidence of a request by the Department on 16 July 2019 and Dr Marks’ response on 14 August 2019 is sufficient to identify an issue for trial.

25. It was for these reasons that I made an order dismissing the plaintiffs’ application for summary dismissal or strike out of the defences of justification, statutory immunity and qualified privilege.

Notices to Produce

26. I turn then to my reasons for the orders made on 12 June 2026 for setting aside aspects of the plaintiffs’ Notices to Produce of 6 January 2026 and 9 January 2026 and striking out the Notice to Admit Facts and Authenticity of Documents dated 23 February 2026.

27. In dealing with these matters, it must be borne in mind that the plaintiffs have obtained a great deal of material under legislation and informally from the defendant. This is amply demonstrated by the previous judgments to which I have referred at the outset of these reasons.

28. Turning then to the objections to the Notice to Produce of 6 January 2026, I upheld the defendants’ objection to Category A1 which required production of all documents held by the defendant which contained the opinion expressed by Dr Marks on page 4 of her report of 14 August 2019, which I have set out above. The defendant objected to this matter because it was oppressive and insusceptible to computerised search engines. I accept that evidence. However, to my mind, there is no issue that Dr Marks expressed the impugned opinion. Searching for each and every document that may contain, refer to, repeat or otherwise record that opinion does not relate to any issue in the proceedings and is in the category of fishing.

29. As to Categories B2, B3, B4, B5, C6, C7, D9A and D9B, I am of the view that all of the documents in those categories fall into the category prohibited from production by s 29 of the Care and Protection Act, in as much as they are information, or relate to information, covered by the provisions of Ch 3 of the Care and Protection Act. Under s 29(1)(e), the defendant cannot be compelled in these proceedings to produce the report or a copy of or extract from it or disclose or give evidence of any of its content. Moreover, the reports containing the information are not admissible in these proceedings by force of s 29(1)(d).

30. Category C8 is set aside because it does not call for the production of documents but rather makes a request for information in the nature of interrogatories. I also set aside Categories 12a, 12b and 12c. They require all records referring to certain matters which do not specifically identify the specific documents required to be produced but rather require the defendant to make a decision about whether any given document falls within the very wide description. The description is so wide that there is no reasonable basis beyond speculation that it is likely or on the cards that the documents, if they can be identified, will assist in the resolution of any issue in the proceedings.

31. I turn then to the Notice to Produce of 9 January 2026. I set aside Category 2 on the same ground as I set aside Category A1 in the 6 January Notice. I set aside Category 3(c). It calls for “all information” provided by a specified person to the police. It does not call for documents as such. To the extent to which records may have been made by police to record the information, those records are not within the power, custody or control of the defendant.

32. Categories 7A, 7B and 7C relate to communications between the defendants and the Clinical Excellence Commission, being all communications received on 10 December 2022 and 20 December 2022 and communications sent, presumably in response. I set these documents aside because it was not clear that they related to any issue between the parties or that there was any other legitimate forensic purpose. It was not demonstrated that those documents might cast light on the issues in the proceedings. I set aside Categories 3(a), 3(b) and 6 on the basis of s 29 of the Care and Protection Act.

Notice to Admit Facts and Authenticity of Documents

33. I turn then to the Notice to Admit Facts and Authenticity of Documents dated 23 February 2026. I acknowledge that the defendant has filed a Notice Disputing Facts in response. A Notice to Admit Facts is not a coercive procedure, although it may have costs implications.

34. I do not regard the Notice as being one to admit facts. Much of the document goes to seeking admissions in relation to the contents or effect of documents, which to my mind is an impermissible use of the procedure. Much of the content of the Notice relates to matters which are not relevant to the issues in the defamation proceedings but may be relevant to the personal injuries action brought on behalf of the plaintiffs’ daughter. The documents themselves are manifestly business records, in the main, under s 69 of the Evidence Act 1995 (NSW), and will be admissible in evidence as such.

35. As I have already stated, it is not alleged on behalf of the defendant that the plaintiffs accidentally or otherwise inflicted any injury on their baby on or about 12 May 2019. It is not part of the defence of justification, and the Notice does not serve any legitimate purpose.

Orders

36. As such, my orders of 12 June 2026 were as follows:

37. In relation to the plaintiffs’ Notice to Produce dated 6 January 2026, set aside:

(a) Category A1; (b) Categories B2, B3, B4, B5, C6, C7, D9A and D9B; (c) Category C8; (d) Categories F12A, F12B and F12C.

2. In relation to the plaintiffs’ Notice to Produce dated 9 January 2026, set aside:

(a) Category 2; (b) Category 3(c); (c) Categories 7A; 7B and 7C; (d) Categories 3A, 3B and 6.

3. Strike out the plaintiffs’ Notice to Admit Facts and Authenticity of Documents dated 23 February 2026.
4. Refuse the plaintiffs’ Application for Summary Dismissal of the defendant’s justification, statutory immunity and qualified privilege defences.
5. The plaintiffs are to pay the defendant’s costs of the applications heard on 14 April 2026.

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