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[2025] VSC 680
procedural. The application for a separate preliminary determination of the limitation questions was dismissed [33]. The application to adjourn the trial until the first half of 2026 was refused. The trial...
3 cited instruments linked from this judgment.
The court did not decide whether RC’s allegations qualify as child abuse for limitation purposes, whether any part of his case is time-barred, or whether Ballarat Grammar is liable. It decided that those limitation questions should not be heard in a separate preliminary trial because they were fact-heavy, would overlap with the main trial, were unlikely to end the case or save work, and could delay the case and require RC to give evidence twice. The court also refused the school’s request to postpone the trial until 2026. It allowed only a one-week delay, to 17 November 2025, because some discovery and possible further particulars remained outstanding.
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2,608 words · generated 29/09/2026
In RC v Ballarat and Queen's Anglican Grammar School [2025] VSC 680, Keogh J dealt with two interlocutory applications in a civil proceeding. The first was the school’s application for preliminary determination of questions concerning the child-abuse limitation provisions in pt IIA div 5 of the (Vic) (LAA). The second was its application to adjourn a trial listed for 11 November 2025.
RC was a boarder at Ballarat Grammar from January 2002 to November 2007 [1]. His pleaded allegations covered a range of conduct by older students, including physical assaults, forced or excessive drinking, exposure to pornography, humiliation and bullying. He also alleged that staff knew, or should have known, about abuse and failed to prevent it [3]–[7]. He claimed psychiatric and substance-use injuries and relied on negligence, including breach of a non-delegable duty, as well as an alternative contractual claim [7].
The school disputed liability and pleaded that the abuse allegations did not amount to child abuse for the purposes of the LAA. It also pleaded that claims outside the child-abuse provisions were time-barred [8]–[12]. RC, in turn, sought an extension of time under s 23A of the LAA [18].
The school proposed that four questions be determined separately. In substance, they asked whether any part of RC’s action arose from physical, sexual or related psychological abuse within s 27O; whether any part was time-barred; whether an extension should be granted if required; and whether the alternative contractual claim was time-barred [20]. The court dismissed the application for a separate determination [33].
The school also sought an adjournment to the first half of 2026. Keogh J refused that longer adjournment, but moved the trial by one week, to 17 November 2025. The proceeding remained listed for mention on 11 November [42]. The ruling therefore addressed case management only. It did not decide the factual allegations, the statutory character of the alleged conduct, limitation status, negligence, contract, or damages.
The court began from the parties’ acceptance of the principles for a separate trial. Under r 47.04, separate determination requires great caution and should be ordered only where its utility, efficiency and fairness are beyond question [25]. A preliminary hearing is generally unsuitable if it risks a substantial factual contest, overlaps significantly with the trial evidence, or is likely to prolong litigation rather than shorten it [26]. The ruling cited Murphy v State of Victoria & Anor [2014] VSCA 238 at [28] as the source for those principles [25]–[26].
First, the court expected the limitation question to require substantial, contested evidence. The pleaded conduct extended across six years and included both individual events and alleged courses of conduct. The court did not yet know what evidence would be relevant to deciding whether the acts and omissions met the statutory description of child abuse. It anticipated witness and documentary evidence, and noted that expert opinion might arguably be relevant [28]. RC would need to give evidence and was likely to call other witnesses. The school anticipated calling two or three witnesses. The parties could not proceed on agreed facts or facts readily determined by a judge without a factual hearing [28].
Second, even a ruling on the limitation issues was unlikely to end the action. The school’s submissions implicitly accepted that RC might establish that some pleaded acts or omissions fell within the child-abuse provisions [29]. The school argued that an early ruling could identify which parts of the case could proceed and assist mediation and trial preparation. The judge considered that practical benefit unlikely to materialise. Conduct that could not itself form part of a cause of action might still be relevant as part of the circumstances, to the school’s response, or to the plaintiff’s account of later injury. Alcohol consumption, for example, might be relied on by RC as a consequence of injury, or by the school as an unrelated cause of psychological injury [29]. The ruling did not decide how such evidence should ultimately be treated; it explained why the proposed separation would not neatly isolate the relevant evidence.
Third, the evidence at the preliminary hearing would significantly overlap with the evidence at trial [30]. A separate hearing would therefore not provide a clean or efficient division of issues. Fourth, the likely consequence was delay. The principal trial would have to await judgment on the preliminary questions, making a trial in 2026 likely [31]. Finally, RC had significant psychological ill-health. A preliminary hearing would require him to give evidence about the conduct and injuries twice, and delay would add to the burden on him [32]. Taken together, these matters meant the required procedural utility and fairness had not been established [33].
On the adjournment application, the judge examined each claimed preparation difficulty. The school said it lacked a suitable medicolegal psychiatric assessment. But the psychiatrist it had arranged to examine RC in June 2024 reported that RC’s disturbed mental state and lack of cooperation had significantly affected the assessment. A psychiatrist who examined RC for his own case in January 2025 had not reported similar difficulties. The judge considered the school had had ample opportunity to arrange a further examination and had not done so [35].
The school also said it needed its own forensic accounting opinion. RC had obtained a report in November 2024, and financial documents for 2021 to 2023 were reportedly missing at that stage. The judge noted that those records had since been provided to RC’s solicitors and were to be discovered. The school could raise any specific prejudice from their late provision, but the circumstances did not justify an adjournment to obtain its own report. It had known for months what expert evidence RC intended to rely on and had not engaged its own expert [36].
The court also rejected the discovery grounds advanced for a longer delay. One discovery issue had been resolved by agreement, with further documents due by 7 November, and RC was content to proceed on that basis [37]. The school had only recently requested clinical notes concerning a 2024 workplace-bullying claim. The judge noted delay in raising that issue and no presently identified prejudice sufficient to justify an adjournment. The school could raise particular prejudice after receiving the documents [37].
The Medical Panel referral did not justify an indefinite postponement. The judge noted doubt about whether RC needed to establish significant injury to recover non-economic loss damages, because RC intended to argue that pt VBA of the Wrongs Act 1958 (Vic) did not apply to his claim by reason of s 28LC(2)(a). The court did not determine that legal issue. It also noted delays in psychiatric assessments and that the assessment date was unknown. In those circumstances, an indefinite delay risked significant personal prejudice to RC [38].
Finally, the court addressed the school’s complaint that the particulars did not give adequate notice of the case. Particulars matter in a case involving a long period, varied alleged conduct and many alleged perpetrators and bystanders [40]. The judge acknowledged that RC’s particulars and interrogatory answers might be the best he could provide, while encouraging counsel to consider whether further particularisation was possible. Any later claim of prejudice would need to be assessed against the school’s own preparation and the evidence available to it [41]. This supported a short delay, but not the requested adjournment to 2026 [42].
The ruling did not announce a new substantive rule about limitation periods or the meaning of child abuse. It applied the existing procedural approach to separate questions, drawing on the principles cited from Murphy [25]–[26]. Its significance lies in the application of those principles to a fact-intensive child-abuse claim where the limitation classification could not readily be separated from the evidence needed at trial.
The statutory setting described by the judge was that pt IIA div 5 applies to an action founded on death or personal injury resulting from physical or sexual abuse of a person when a minor, and any psychological abuse arising out of that act or omission [22]. The judgment also states that there is no limitation period for an action to which div 5 applies, subject to the qualification noted in footnote 2 about actions arising under pt III of the Wrongs Act [22]. Those propositions framed the dispute, but the court did not decide whether RC’s pleaded conduct satisfied s 27O or whether any other part of his action was barred.
After this ruling, the parties still had to resolve those substantive questions in the proceeding. The ruling rejected only the proposed separate procedural route. It did not determine the operation of s 27D, the extension application under s 23A, or the limitation position of the contractual claim. Nor did it decide the separate issue about significant injury and non-economic loss under the Wrongs Act [38].
The procedural point is narrower: a limitation issue does not necessarily make a useful preliminary issue just because its answer may identify whether some pleaded events fall within a statutory exception or abolition of a limitation period. The court examined whether the issue could be heard efficiently and fairly on its own facts and evidence. Here, it concluded it could not.
At [25], the judge said separate trials should be ordered “with great caution” and only when their “utility, efficiency and fairness” are beyond question. In plain English, a potentially important legal issue is not automatically suitable for an early, standalone hearing. The court must be satisfied that separating it will genuinely help, rather than create unfairness or extra work.
At [26], the judge identified conditions that commonly weigh against a preliminary hearing: a significant factual contest, substantial overlap between evidence at the preliminary hearing and trial, or a likelihood that the separate hearing will extend the litigation. This makes the practical consequences of case separation central to the decision.
At [28], the judge found there was “no prospect” of using agreed facts or facts readily determined judicially. The limitation classification depended on what happened across numerous alleged incidents, not merely on a self-contained legal question. This was a case-specific assessment of the expected evidence, not a finding that every child-abuse limitation question requires a full trial.
At [29], the judge explained why an early limitation ruling might not reduce the trial’s scope. Events that could not independently support a cause of action might still form part of the factual context, bear on the school’s response, or be relevant to competing explanations for psychological injury. In practical terms, deciding that an event falls outside one statutory category would not necessarily make the event irrelevant to every other issue.
At [32], the judge treated the burden of giving evidence twice and the likely effect of delay on RC’s mental health as relevant to the fairness of a separate hearing. The point was not that a plaintiff’s evidence can never be heard in stages. It was that, in this case, the expected repetition and delay weighed against separation.
At [38], the judge rejected reliance on the Medical Panel referral as a reason for a long adjournment. The assessment date was unknown, and waiting could cause significant personal prejudice. The passage also records, without deciding, RC’s argument about the application of pt VBA and s 28LC(2)(a).
At [42], the court drew a distinction between refusing a lengthy adjournment and allowing a short one. Ongoing discovery and possible further particulars justified moving the trial by a week, but not to the first half of 2026. The result illustrates a tailored procedural response to the identified preparation issues.
This ruling is most relevant as a procedural example where a party asks to have limitation questions decided before a trial involving many disputed historical events. The features that mattered included a long period of alleged conduct, a variety of incidents, allegations of courses of conduct, and factual disputes about what happened [28]. The evidence was expected to include testimony and documents, with possible expert evidence. There was no agreed factual platform for the legal questions.
The ruling is also relevant where a preliminary answer may not dispose of the proceeding. Here, the school accepted the likelihood that some alleged conduct could fall within the child-abuse provisions, and other conduct might remain relevant to context, response, causation or injury [29]. The proposed hearing was therefore unlikely to carve the case into two clean, evidence-independent parts.
The procedural balance may be different where facts are agreed, the preliminary issue can be decided without substantial evidence, or its resolution could end the action or materially reduce the trial. Those are considerations identified in the general principles at [25]–[26], not guarantees about how a court would rule in another case. The judgment does not establish a categorical prohibition on preliminary limitation trials in child-abuse proceedings.
For adjournment questions, the ruling may be informative where a party relies on expert evidence, late discovery or outstanding assessments. The court examined the history of the steps taken, when the difficulties were raised, whether particular prejudice was identified, and the impact of further delay [35]–[38]. Those considerations were applied to this record and do not determine the outcome of a different adjournment application.
The supplied judgment contains no later judicial decisions discussing, applying or distinguishing RC v Ballarat and Queen's Anglican Grammar School. On the materials provided, its subsequent treatment cannot be assessed. The ruling itself cites Murphy v State of Victoria & Anor [2014] VSCA 238 at [28] for the principles governing separate trials [25]–[26].
The decision should therefore be read on the basis of what it actually decided: the school’s application for separate determination was refused on the procedural facts before Keogh J, and the trial was moved by one week rather than adjourned until 2026. The ruling is not a determination of the meaning of s 27O, the operation of s 27D, or the availability of an extension under s 23A. Any account of later treatment would require later sources that are not included in the material supplied here.
The substantive limitation questions remained open. The court did not decide whether any pleaded incident or course of conduct was physical abuse, sexual abuse, or psychological abuse arising from physical or sexual abuse within s 27O [22]–[24], [33]. It did not decide whether any part of the action was time-barred under s 27D, whether an extension should be granted under s 23A, or whether the contractual claim was time-barred under s 5 [20].
The court also did not resolve the factual disputes about what happened, what school staff knew, what supervision was provided, whether the school breached a duty or contractual obligation, or whether any breach caused or materially contributed to RC’s injuries. Those remained issues in the main proceeding.
The ruling left open the application of pt VBA of the Wrongs Act to RC’s claim and whether significant injury was required for recovery of non-economic loss. It recorded the parties’ positions and the possibility of an argument based on s 28LC(2)(a), but did not determine them [38].
Finally, the decision does not say what occurred at the later trial or how the parties ultimately resolved the proceeding. It records that the trial was adjourned to 17 November 2025 and that the matter remained listed for mention on 11 November [42]. No later outcome is given in the supplied text.
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PRACTICE AND PROCEDURE - Application by defendant for a separate determination of preliminary questions - r 47.04 of the Supreme Court (General and Civil Procedure) Rules 2025 - s 49 of the Civil Procedure Act 2010 - pt IIA div 5 of the Limitations of Actions Act 1958 - application dismissed - application for trial date to be vacated - application dismissed.
1 The plaintiff, RC, was a boarding student at a secondary school managed and operated by the defendant, Ballarat and Queen's Anglican Grammar School ('Ballarat Grammar') from January 2002 to November 2007. RC alleges in this proceeding that Ballarat Grammar is liable for injuries he suffered as a result being subjected to physical, sexual and psychological abuse while he was a resident at the boarding house.
(a) an application by Ballarat Grammar pursuant to r 47.04 of the Supreme Court (General and Civil Procedure) Rules 2025 (Vic) ('Rules') and/or s 49 of the Civil Procedure Act 2010 (Vic) ('CPA') for a separate determination of preliminary questions relevant to the application of s 27O of the Limitations of Actions Act 1958 (Vic) ('LAA') to the claims made by RC; and
(b) an application by Ballarat Grammar for the trial date of 11 November 2025 to be vacated.
3 RC alleges that during that period he was a boarder at Ballarat Grammar he was subjected to:
(a) traumatic initiation ceremonies which were physically abusive and included being encouraged by other boarders to drink excessive amounts of alcohol; and
(b) bullying and harassment which included physical and sexual abuse perpetrated by other boarders.
4 RC gave the following particulars of the alleged abuse:
a) When the Plaintiff was in Year 7 and/or Year 8, Year 12 students saturated the mattress of the Plaintiff with a fire hose on at least two occasions.
b) When the Plaintiff was in Year 7 and Year 8, he was flipped off his mattress and/or had his doona pulled off him by other students resident of the boarding house whilst sleeping, on numerous occasions causing him anxiety at night and fear when going to sleep.
c) During the Year 7 initiation ceremony the Plaintiff was physically abused by older students, which included being beaten with books, pillows, shoes and fire hoses and forced into cold showers.
d) The initiation ceremony developed and implemented by students resident of the boarding house for students progressing from Year 11 to Year 12 required the Plaintiff (and other initiates) to drink dangerously high levels of alcohol.
e) The Plaintiff was frequently punched by students whilst playing poker which caused severe bruising on the upper arms.
f) The Plaintiff was sprayed with a fire hose.
g) From Year 7, the Plaintiff was supplied with alcohol and cannabis by Year 11 and 12 students.
h) On one occasion, in Year 7 in response to being struck in the head by a student, the Plaintiff absconded from the school and went to the train station in order to leave the school and was approached by the housemaster of the school who convinced him not to leave. The Plaintiff's parents were not informed of this incident.
i) On the mornings of the annual swimming carnival in Years 7 and 8 the Year 12 students, including the [REDACTED], the house captain [REDACTED] and [REDACTED], forced the students, including the plaintiff, to watch pornography. On entry to the room where the pornography was being viewed, the plaintiff was forced to pull his underwear down, leaving him exposed briefly, before proceeding to his seat. Whilst watching the pornography, at various intervals, Year 12 students would force the plaintiff stand up, which in turn revealed to the room that he had an erect penis. After each instance, the plaintiff was taunted and laughed at by other students in the room., [sic] The experience was humiliating and degrading. The Year 12 students sexually abused other students in the room in a similar manner.
j) On Valentine's Day each year the older students would present awards to the most attractive students, the ugliest, and other demeaning titles to students. The male students were forced to wear their blazer, tie and boxer shorts. The older students would consume alcohol until they were drunk and then find flowers on the premises at local gardens including the Ballarat Botanical Gardens. Teachers were present during this and did not stop it.
5 RC's response to a request by Ballarat Grammar for further particulars of the abuse includes the following:
...
On one occasion toward the end of Year 11 the Plaintiff was made to partake in excessive drinking by the Year 12 students. He estimates that he was made to drink approximately 20 beers and several shots of spirits over the night. The drinking took place in the bedrooms and common rooms of the boarding house.
[W]hen the Plaintiff was in Year 7 older students would make the Plaintiff play punch poker with them at night in the boarding house. The older students made up rules, which would mean the odds were stacked in their favour. When the Plaintiff lost, the older students would punch him in the arm. If the Plaintiff tried to leave the card game, he was reminded of how many punches he owed 'the house' and was coerced into staying longer to attempt to pay off the 'debt' and avoid being punched. Because the older students made up the rules, this resulted in more punches being accumulated. The physical abuse took place while the Plaintiff was in Year 7 and occurred regularly, including occurring every night for several months during Year 7. The Plaintiff I [sic] was punched so many times that his arms were covered in bruises.
[T]he Plaintiff was sprayed with a fire hose by older students on approximately 30 occasions between year 7 and 8. It occurred on approximately 5 occasions in each year 9, 10 and 11.
a. [A]lcohol was purchased by Year 12 students who were over 18 and distributed to other students. On some occasions alcohol was purchased by other students who had fake identification. Younger students, including the Plaintiff, were made to drink to be part of the 'team'. Students who refused to drink were bullied and belittled. The drinking would occur multiple times a week, and took place in many spots around the boarding house including in bedrooms and the toilet and shower areas. The Plaintiff regularly consumed excessive amounts of alcohol on average between 3 to 4 times a week while at the boarding house. On multiple occasions the Plaintiff drank until he vomited.
b. The Plaintiff was often supplied with cannabis by other students at the boarding house. The students who provided the cannabis were between year 10 and 12. The Plaintiff first smoked cannabis in Year 7 with other students near the front door of the boarding house. The Plaintiff estimates that he smoked cannabis at the boarding house more than 100 times.
6 RC alleges that Ballarat Grammar knew that students were abusing each other and that it was reasonably foreseeable he would suffer psychological injury as a result of being abused.
7 RC alleges that as a result of the abuse, he suffers post-traumatic stress disorder, persistent depressive disorder, major depression, cannabis use disorder and alcohol use disorder. He alleges the breach by Ballarat Grammar of the non-delegable duty it owed to him caused or materially contributed to the abuse and his injuries. RC makes an alternative claim on the basis that Ballarat Grammar breached the terms of the agreement it had with him relating to his attendance at Ballarat Grammar as a boarder.
8 Ballarat Grammar objects to RC's pleading of the abuse on the basis that it is too broad, vague, ambiguous and embarrassing, and is not sufficiently particularised. Under cover of that objection, Ballarat Grammar pleads that the alleged abuse is not child abuse in accordance with pt IIA div 5 of the LAA and that RC's claim is barred by operation of s 27D. Ballarat Grammar pleads that it does not know, and therefore cannot and does not admit the allegations of abuse.
9 Ballarat Grammar similarly objects to RC's pleading of knowledge, and under cover of that objection does not admit the allegations of knowledge.
10 Ballarat Grammar admits it owed a duty to RC, but denies that the duty extended to the prevention of harm due to criminal acts of other persons.
11 Ballarat Grammar denies negligence and breach of contract.
12 Ballarat Grammar alleges RC is precluded from recovering damages for non‑economic loss because of his failure to comply with pt VBA of the Wrongs Act 1958 (Vic) ('Wrongs Act').
13 RC filed a writ and statement of claim on 5 June 2023. An amended writ was filed on 1 August. Ballarat Grammar filed a notice of appearance on 11 August and a defence on 26 September.
14 On 9 February 2024, the Court made orders fixing the proceeding for trial on 11 November 2025 and setting a timetable for interlocutory steps.
15 On 10 July 2024, on the Court's own motion, the trial date was brought forward to 20 May 2025.
16 RC filed a summons on 28 November 2024 seeking that Ballarat Grammar provide further answers to interrogatories and further and better discovery. That summons was dismissed by consent without adjudication on 3 February 2025.
17 On 5 February 2025, Ballarat Grammar applied to vacate the trial date. Orders were made on 14 February granting that application, refixing the trial for 11 November 2025, and providing that any application by RC to apply under the LAA to extend the time to commence the proceeding be issued and served by 28 February.
18 RC filed a summons on 27 March 2025 seeking an extension of time pursuant to s 23A of the LAA ('LAA application'). Orders made at a directions hearing for that summons on 2 May record that the parties disagreed as to whether the extension of time application should be listed to be heard at the commencement of the trial or in advance of the trial. The judicial registrar noted in the orders that the proposed timetable set for the trial would make it possible for these matters to be determined ahead of the principal trial.
19 On 12 May 2025, orders were made timetabling steps in relation to the LAA application. The orders provided that any application by a party for the hearing of a preliminary question before trial be filed and served by 1 August.
20 On 4 August 2025, Ballarat Grammar issued a summons seeking an order for a preliminary trial of the LAA application. The application was subsequently amended on 1 October to apply for the following order:
Pursuant to r 47.04 of the [Rules] and/or s 49 of the [CPA], the following questions, being issues raised by the plaintiff's Summons dated 27 March 2025, the Amended Defence dated 12 April 2024 and the proposed Further Amended Defence, be heard and determined separately as preliminary questions before the trial of the proceeding:
Question 1: Is any part of the plaintiff's action in this proceeding founded on the personal injury of the plaintiff resulting from an act or omission in relation to the plaintiff when he was a minor that is physical abuse or sexual abuse, or psychological that arises out of that act or omission, within the meaning of s 27O of the [LAA]?
Question 2: In light of the answer to question 1, is the plaintiff's claim, or any part(s) of it, as pleaded in the Further Amended Writ and Statement of Claim dated 1 February 2024 (the FASOC), statute-barred under the LAA, and in particular, section 27D?
Question 3: If the answer to the question 2 is "yes", should the plaintiff be granted leave pursuant to s 23A of the LAA for an extension of time to continue proceedings for the recovery of damages in respect of the injuries sustained as a result of the defendant's alleged negligence arising out of its alleged breach of duty of care as set out in the FASOC.
Question 4: Is the plaintiff's claim, insofar as any part of it pleaded in the FASOC is founded on the alleged breach by the defendant of an agreement between the plaintiff and the defendant, statute-barred under the LAA, and in particular, section 5?
Ballarat Grammar's summons was listed for hearing on 31 October 2025.
21 On 2 October 2025, RC issued a summons seeking further and better discovery from Ballarat Grammar. The discovery issues raised by that summons were resolved by agreement on the basis that Ballarat Grammar would make further discovery of agreed categories of documents by 7 November.
22 Part IIA div 5 of the LAA governs actions for personal injury resulting from child abuse. The division applies to an action if the action:
(b) is founded on the death or personal injury of a person resulting from -
(i) an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse; and
(ii) psychological abuse (if any) that arises out of that act or omission.[1]
There is no limitation period for an action to which div 5 applies.[2]
23 RC argues that provisions in pt IIA div 5 of the LAA apply to the whole of the claim he makes in this proceeding against Ballarat Grammar.
24 Ballarat Grammar argues that all or some of the acts and omissions pleaded by RC are not acts of physical, sexual or psychological abuse. Ballarat Grammar argues that, to the extent the claim by RC is for injury that is the result of an act or omission that is not child abuse, the time for bringing the action has expired in accordance with pt IIA div 5 of the LAA, and that there should be no extension of the limitation period granted in accordance with div 3 of that part.
25 The principles governing whether a separate trial of the LAA questions should be ordered were not in issue. The discretion to order a separate trial under r 47.04 of the Rules should be exercised with great caution and only when the utility, efficiency and fairness of adopting that course is beyond question. A preliminary determination without the benefit of all relevant evidence may disadvantage a party. Trial of a separate question should not be ordered on the basis of assumed facts 'unless the facts are agreed or can readily be determined judicially'.[3]
26 Preliminary determination of a question is generally not appropriate unless the outcome may put an end to the action; where there is a clear line of demarcation between the preliminary issue and the facts in issue at trial; and where convenience and cost factors weigh in favour of the preliminary trial. Generally, it will not be appropriate to make an order under r 47.04 of the Rules where determination of the preliminary question is likely to result in a significant factual contest at the preliminary hearing and trial; where there is a significant overlap in the evidence that will be adduced at the preliminary hearing and trial; and where ordering a preliminary hearing may prolong rather than shorten the litigation.[4]
27 For the following reasons, I conclude that an order should not be made under r 47.04 of the Rules for the determination of the LAA application at a preliminary trial.
28 First, it is likely the evidence relevant to the LAA application will be substantial and contentious. That evidence will need to address a large number of acts and omissions spanning a period of six years, some of which are pleaded as a course of conduct. What evidence will be relevant to determination of whether the pleaded acts and omissions constitute child abuse remains to be determined. There will no doubt be witness and documentary evidence directed to the fact of what occurred. Arguably medical expert opinion evidence may be relevant to what constitutes child abuse in the particular context of this case. In oral submissions, Ballarat Grammar said it was likely to call two or three witnesses on a preliminary trial of the LAA application. RC would be required to give evidence and is likely to call a number of other witnesses. There is no prospect of proceeding on agreed facts or on facts that can readily be determined judicially.
29 Second, the determination of the LAA application will almost certainly not put an end to RC's action. Ballarat Grammar's submissions implicitly accepted the likelihood that RC would succeed in establishing that some of the acts and omissions pleaded by him were within the meaning of child abuse. Ballarat Grammar submitted that answers to the preliminary questions would enable the parties to understand what part of RC's pleaded action could proceed to trial and would assist the parties prepare for mediation and trial. It is unlikely that even the more limited benefit of a preliminary answer to the LAA application identified by Ballarat Grammar will be achieved. Allegations about certain conduct will not become irrelevant at the trial of the proceeding just because that conduct cannot be part of RC's cause of action. Conduct, such as consumption of alcohol, may still be relevant in a number of ways. The conduct remains part of the factual matrix in which the alleged abuse occurred. It may be relevant to the response of those in charge of the boarding school. Substance abuse may be relied on by RC as a sequelae of injury allegedly caused by child abuse. Conversely, Ballarat Grammar may rely on the alcohol consumption as being an unrelated cause of psychological injury, which should have the effect of reducing any award of damages. Determination of the LAA application is unlikely to assist settlement negotiations or materially reduce the work necessary to prepare and run a trial.
30 Third, if separate determination of the LAA application were ordered, there would be significant overlap between the evidence adduced at the preliminary hearing and the evidence at trial.
31 Fourth, it is more likely that conducting a preliminary trial would prolong rather than shorten the litigation. The proceeding is listed for trial on 11 November 2025. For reasons I will come to, I will dismiss the application by Ballarat Grammar to adjourn the trial to a date in the first half of 2026. While I have concluded that a short adjournment of about a week is appropriate, it remains likely the trial will be heard this year. If a preliminary trial were to be ordered, the principal trial would be delayed until some time after judgment is delivered. The likelihood is the principal trial would not occur until well into 2026.
32 Fifth, there is evidence that RC suffers significant psychological ill-health. If a preliminary trial is ordered, he would necessarily be required to give evidence about the alleged conduct and his injuries twice. RC has no doubt prepared for a trial on 11 November 2025. Almost certainly, the finalisation of the proceeding will be delayed if a preliminary trial is ordered. The burden on RC's mental health from adjournment of the trial and being required to give evidence twice weighs against ordering the separate determination of the LAA application.
33 Ballarat Grammar's application for an order under r 47.04 of the Rules is dismissed.
34 On 29 October 2025, Ballarat Grammar filed a summons seeking adjournment of the 11 November trial date. The application for adjournment was put on the basis that the proceeding is not in a state of preparedness such that there can be a fair trial on 11 November.
35 Ballarat Grammar submitted it has been unable to obtain medicolegal and forensic accounting opinions necessary to enable it to defend the claim by RC. Ballarat Grammar arranged for RC to attend a consultation with a medicolegal psychiatrist in June 2024. That psychiatrist reported their capacity to adequately examine and assess RC was significantly impacted by his 'disturbed mental state and lack of cooperation'. A medicolegal psychiatrist who examined RC on his own behalf in January this year said they did not experience similar problems. Ballarat Grammar has had ample opportunity to arrange a further medicolegal examination but has not done so.
36 RC obtained a forensic accountant's report in November 2024. I was told that report identified that financial documents for the years 2021 to 2023 were missing. I was told those financial records have now been provided to RC's solicitors and will be discovered in the immediate future. Ballarat Grammar will have an opportunity to raise any particular prejudice it says is associated with the late provision of those documents. However, the circumstances do not justify an adjournment in order for Ballarat Grammar to obtain its own forensic accounting report. It has been on notice for many months of the expert evidence upon which RC will seek to rely and has taken no steps to engage its own expert.
37 Ballarat Grammar raises two discovery issues as justification for an adjournment of the trial. First, RC recently applied for further discovery of categories of documents by Ballarat Grammar. The parties agreed on that application that Ballarat Grammar make certain further discovery by 7 November 2025. RC is content to proceed to trial on that basis. Those circumstances certainly do not justify the trial being adjourned on Ballarat Grammar's application. Second, RC made an application for compensation for workplace bullying that occurred in 2024. That history was raised and addressed in the medicolegal psychiatric report obtained by RC in January this year. Ballarat Grammar has only recently asked RC to make further discovery of the clinical notes of a treating psychologist. I was told that discovery will be provided in the immediate future. I indicated to RC's legal representatives at the hearing that careful consideration should be given to the workplace bullying claim to ensure that RC's discovery obligations are complied with. These circumstances do not justify an adjournment. There was delay by Ballarat Grammar in raising this discovery issue. It is not possible to identify prejudice from the late discovery that is sufficient to justify an adjournment. Ballarat Grammar will have an opportunity to raise the issue of particular prejudice after it has seen the discovered documents.
38 RC has been referred for assessment by a Medical Panel under s 28LWE of the Wrongs Act. For the following reasons I reject Ballarat Grammar's submissions that the trial should be adjourned until the assessment is completed. First there is doubt about whether RC must have suffered significant injury in order to recover non-economic loss damages.[5] RC will argue that pt VBA does not apply to his claim because it is within s 28LC(2)(a). Second there are currently delays in Medical Panel assessments of psychiatric injuries. It is not known when RC will be assessed. Third the application to adjourn is made late. An indefinite delay in the trial is likely to result in significant personal prejudice to RC.
39 Ballarat Grammar submitted that RC's pleadings, further particulars and answers to interrogatories setting out the allegations of child abuse do not adequately put it on notice of the case it must meet at trial. RC served the further and better particulars in response to the request by Ballarat Grammar in early September this year. He submitted he has done his best to particularise the abuse allegations, including by providing the names of some alleged perpetrators, some relevant fellow students and some staff members to whom reports of conduct were made. RC submitted that Ballarat Grammar has been aware since it was served with the writ and statement of claim of the years that he attended at the school and of the house in which he resided as a boarder. He submitted that as a consequence, Ballarat Grammar knew or could readily discover which of its past employees had responsibility for supervision, care and control of RC and other relevant students in those years and the names of students who were boarders at the time. RC submitted Ballarat Grammar had been afforded a fair chance to investigate and prepare the proceeding for trial.
40 The purpose of particulars is to give Ballarat Grammar adequate notice of the case it must meet at trial. Particulars are important in a case such as this because of the lengthy period over which the abuse is alleged to have occurred, the range of circumstances that constitute the alleged abuse, and the number of people involved as alleged perpetrators and bystanders.
41 It may be that the particulars that have been provided and the answers to interrogatories are the best that RC can do. However, I encouraged trial counsel to consider this issue carefully to ensure that Ballarat Grammar is put fairly on notice of the case that RC will run at trial. There may, as a result, be some further particularisation of RC's case. Ballarat Grammar will have the opportunity to raise any argument about prejudice to it from any late particularisation of the case it has to meet. However, a consideration of that prejudice will necessarily involve an appreciation of the steps Ballarat Grammar has itself undertaken to prepare the case and of the evidence it has at its disposal.
42 I will not grant Ballarat Grammar's application to adjourn this trial until the first half of 2026. However, having regard to the work still being done on discovery and the potential for some further particularisation of RC's case, I will adjourn the trial a week. The proceeding will remain listed for mention on 11 November to give the parties a further opportunity to raise trial preparation issues. The parties will have an opportunity at that time to address the issue of costs of the applications by Ballarat Grammar. I will adjourn the trial date to 17 November 2025.
43 Orders will be made in accordance with these reasons.
[1] Limitations of Actions Act 1958 (Vic) s 27O.
[2] Ibid s 27P (actions that arise under pt III of the Wrongs Act 1958 (Vic) are not covered by s 27P).
[3] Murphy v State of Victoria & Anor [2014] VSCA 238, [28].
[5] Wrongs Act 1958 (Vic) s 28LE.
RC
Ballarat and Queen's Anglican Grammar School [2025] VSC 680
The application for a separate preliminary determination of the limitation questions was dismissed [33]. The application to adjourn the trial until the first half of 2026 was refused. The trial was adjourned by one week to 17 November 2025, with the proceeding to remain listed for mention on 11 November [42]–[43].
k) The Plaintiff was called "Beaver" and "Beave" by the teaching staff.
l) The Plaintiff was forced by Year 11 students to fight other students in a classroom during preparatory studies time.
m) During "muck up day", at the end of the 2002 school year, students resident of the boarding house forced the plaintiff (along with other students) to line up in the Dart House courtyard, where they then proceeded to physically assault the plaintiff (and other students) with a variety of condiments and objects, including garlic spray, eggs, bean bag balls, and soy sauce. The House Master, [REDACTED] observed the assaults but did not intervene.
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