HM (a pseudonym) v Sister Mary Monaghan
[2025] VSC 51
•25 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2022 01270
BETWEEN:
| HM (a pseudonym) | Plaintiff |
| v | |
| SISTER MARY MONAGHAN | Defendant |
| THE STATE OF QUEENSLAND | Third Party |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 December 2024 |
DATE OF JUDGMENT: | 25 February 2025 |
CASE MAY BE CITED AS: | HM (a pseudonym) v Sister Mary Monaghan |
MEDIUM NEUTRAL CITATION: | [2025] VSC 51 |
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PRACTICE AND PROCEDURE — Historical child abuse claims — Limitation of Actions Act 1958 (Vic) ss 27O, 27P, 27R — Plaintiff alleges sexual, physical, and psychological abuse while residing at a children’s home in the 1960s — Defendant seeks permanent stay of allegations of sexual abuse on grounds of forensic prejudice by reason of the passage of time — Plaintiff unable to identify alleged perpetrators — Defendant argues impossibility of fair trial due to loss of evidence and death of key witnesses — Plaintiff contends forensic disadvantage arises from defendant’s own failure to investigate historical complaints — Whether identified forensic prejudice constitutes ‘exceptional circumstances’ justifying a stay — Effect of legislative abolition of limitation periods — Whether passage of time and loss of evidence justify permanent stay — Death and incapacity of key witnesses — Loss of contemporaneous records — Impact of plaintiff’s inability to identify alleged perpetrators — Institutional response to prior complaints — Relevance of prior claims — Consideration of judicial techniques in mitigating evidentiary disadvantage — High threshold for stay applications following abolition of limitation periods — Whether loss of evidence amounts to ‘exceptional circumstances’ precluding a fair trial — GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, applied — Willmot v State of Queensland [2024] HCA 42 and RC v Salvation Army (NSW) Property Trust [2024] HCA 43, considered and applied — Weiden v YZ (a pseudonym) (No 2) [2023] VSCA 294, CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313 and Colbert v Trustees of the Christian Brothers [2024] VSC 309, referred to — Stay application dismissed — Application to strike out statement of claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr G Boas of counsel with Mr D Carolan of counsel | Ken Cush & Associates |
| For the Defendant | Mr S Hay KC with Mr C Morshead of counsel | Wotton & Kearney |
| For the Third Party | Mr M Edwards, solicitor | Clayton Utz |
HER HONOUR:
Introduction and background
The plaintiff in this proceeding (‘HM’) is a woman in her late sixties. The defendant is the nominated representative of the Sisters of Nazareth (‘Sisters’). Until 1982 the Sisters operated Nazareth House in the suburbs of Brisbane (‘home’), which provided care for children and the elderly. HM was a resident at the home between 1961 and 1967 (‘relevant period’), having been made a ward of the State of Queensland (‘State’) when she was five years old. She was 11 years old when she left the home, and has had a difficult life since. She contends that many of those difficulties are as a consequence of the mistreatment and abuse she suffered at the home while under the care of the Sisters and the State.
This proceeding was commenced on 13 April 2022. The allegations in the amended statement of claim were summarised in an affidavit sworn by the defendant’s solicitor, Mr Richard Leder on 19 February 2024 (‘first Leder affidavit’), as follows:
In the ASOC,[1] the plaintiff alleges that she was sexually, physically and emotionally[2] abused and falsely imprisoned during her placement at Nazareth House in Brisbane in the State of Queensland (the Home) between approximately July 1961 and late 1967 (the Relevant Period).
[1]Amended Statement of Claim filed on 16 February 2024.
[2]The further amended statement of claim substituted the term ‘emotional abuse’ with ‘psychological abuse’. Nothing turns upon the distinction for present purposes.
In relation to the alleged sexual abuse, the plaintiff alleges at paragraphs 10 to 13 of the ASOC that:
(a)she was sexually abused by three priests employed at the Home by the Sisters of Nazareth (the Sisters);
(b)the abuse occurred on an unidentified number of occasions between 1964 and 1967;
(c)immediately prior to the abuse, the plaintiff would be taken to the Nuns’ quarters at the Home by servants and/or agents of the Sisters, including (but not limited to) Sisters Gregory, Giles and Philomena, after Mass on Sundays;
(d)the plaintiff would then be left in the Nuns’ quarters with the priest who had conducted the Mass; and
(e)the plaintiff would then be sexually abused by three unidentified priests.
In relation to the alleged physical abuse, the plaintiff alleges at paragraph 14 of the ASOC that she was subject to serious physical abuse, including the following:
(a)being repeatedly struck on an unidentified number of occasions and time period with a feather duster, cane or belt with a buckle, all over her body by staff employed at the Home including (but not limited to) Sister Philomena;
(b)having methylated spirits put on the welts caused by the above physical abuse and being belted further with a feather duster, cane or belt with a buckle, in the event she cried. This alleged abuse occurred on an unidentified number of occasions and time period and was perpetrated by an unidentified individual(s);
(c)having another child’s urine-soaked underwear rubbed in her face and then being made to stand in a corner with the urine-soaked underwear on her head on a regular and routine basis. This alleged abuse occurred on an unidentified number of occasions and time period and was perpetrated by an unidentified individual(s); and
(d)being caned when a child resident whom the plaintiff was charged to look after and who allegedly had kidney problems wet herself. This alleged abuse occurred on an unidentified number of occasions and time period and was perpetrated by an unidentified individual(s).
In relation to the alleged emotional abuse, the plaintiff alleges at paragraph 15 of the ASOC that:
(a)the plaintiff would be told to wait in the recreational room on the basis her mother was attending the Home to visit her despite this being untrue. This alleged abuse occurred on an unidentified number of occasions and time period and was perpetrated by an unidentified individual(s); and
(b)the plaintiff was told she was the Devil’s child or spawn, useless and stupid. This alleged abuse occurred on an unidentified number of occasions and time period and was perpetrated by an unidentified individual(s).
HM alleged that the Sisters owed her a duty to protect her from the reasonably foreseeable risk of harm from sexual, physical and psychological abuse, and breached that duty by, among other things, failing to adequately supervise HM, the Sisters and the three unidentified priests (‘three priests’).[3] HM claimed that she has suffered psychiatric injury as a consequence of the sexual, physical and psychological abuse she experienced at the home, including post-traumatic stress disorder, persistent depressive disorder and substance use disorder. In her particulars of special damage filed on 1 February 2024, HM claimed damages for future medical treatment of $71,378.66, damages for past loss of earnings of $1,418,621, damages for future loss of earnings of $147,514, and past and future superannuation benefits of $249,551. She also claimed general damages for pain and suffering, aggravated damages, exemplary damages and interest.
[3]HM also originally claimed that the Sisters were vicariously liable for the conduct of the priests, but that claim was no longer pressed in the further amended statement of claim filed on 23 April 2024.
In her amended defence to the further amended statement of claim dated 6 May 2024, the defendant says she does not know and therefore cannot admit the allegations of sexual abuse, and that she requires further and better particulars of the identity of the three priests, and of the orders and/or diocese to which they belonged.
While the proceeding was commenced in April 2022, it seems that the parties did not embark upon intensive preparation for trial (which was originally scheduled for April 2024) until about late 2023, when the first round of discovery was completed. In a letter from her solicitors dated 7 November 2023 and in her defence filed on 5 December 2023, the defendant sought particulars of the three priests, the religious order or institution to which the three priests belonged, and the identity of the nuns who allegedly took HM to the nuns’ quarters where the sexual abuse allegedly occurred.[4]
[4]Subsequently in these reasons, for ease of reading, I will refrain from using the words ‘allegation’, ‘alleged’, and/or ‘allegedly’, save where the context requires.
On 1 March 2024, the defendant served interrogatories for the examination of HM, seeking her response to questions concerning, among other things:
(a) the physical appearance of the three priests;
(b) the religious order(s) to which the three priests belonged and the duties they carried out at the home;
(c) the identity of the sisters who took HM to the nuns’ quarters to meet the three priests;
(d) whether there were any other people present in the nuns’ quarters when the sexual abuse occurred;
(e) whether HM ever witnessed others being sexually abused in the nuns’ quarters;
(f) her past disclosures of sexual abuse; and
(g) HM’s application to the Forde Redress Scheme.
In her answers to the interrogatories, HM responded as follows regarding the physical characteristics of the three priests:
To the best of my recollection, and from my perspective as a little girl, I believe that at the time of the abuse each of the Priests were aged somewhere in their 40’s. I am guessing this noting I did not grow up with a father so could not reference their age to any older male figure in my life at the time.
I recall that one of the Priests had brown hair, and another of them had black hair. One of the Priests had an elongated nose and another had ears which were hairy. I recall that the Priests smelt funny and it made me feel sick as a child although I cannot place the smell. It may have been aftershave or body odour.
I used to shut my eyes during the abuse because I was so scared, and I recall that on one occasion one of the Priests asked “Why are your eyes closed?”. Each of the three priests wore different coloured girdles on their white robes which they wore around their waist, one being yellow, another red, and the third was purple. I have always liked colours, and I still do, and that is why I remember the bright colours of red, yellow and purple. When conducting a Mass, the Priests wore these sashes in each colour over their white robes.
HM said that the three priests were Catholic priests, but she could not identify the order or congregation to which they belonged. She said the three priests would come to give Mass at the home at around 8.00am on Sundays, and remain at the home thereafter. They would abuse her and other girls in the nuns’ quarters after Sunday Mass. The Sisters who took HM to the nuns’ quarters were Sr Gregory, Sr Philomena, and Sr Giles.
HM objected to answering the interrogatory regarding whether any others were present in the nuns’ quarters when the sexual abuse occurred on the basis that the sole purpose of the interrogatory was to ascertain the identity of witnesses. As for whether HM witnessed others being sexually abused, HM objected to answering this interrogatory on the basis that it did not relate to any question in dispute between the parties.
In relation to a question about the physical layout of the nuns’ quarters, HM responded as follows:
The Nun’s quarters were accessible through a side entrance into the Church. The residents used the main entrance to the Church. The side entrance was used by the Priests and the Nuns.
The Nuns’ quarters were located to the left of the Church through a courtyard and a veranda. Inside the Nun’s quarters, there was a communal room with a lounge and a sink. Further up the veranda were the Nuns’ quarters where there were individual rooms where the Nuns resided. I do not now recall whether there were windows.
Following correspondence between the solicitors for the parties, on 26 August 2024, HM filed further answers to interrogatories. In relation to the question of whether there were any witnesses to the sexual abuse, HM responded as follows:
On the occasions when I was sexually abused, I was taken to a different room within the Nun’s quarters. I do not know if any of the other children would have remained in the Nun’s quarters as I was taken to a separate room.
HM stated that she did witness others being subjected to sexual abuse in the nuns’ quarters, but refused to provide particulars of their names or any other identifying details.
Over the course of 2024, both before and after the issue of the applications which are the subject of these reasons (‘stay application’), the parties undertook a number of investigations which might, among other things, identify the three priests, and potential witnesses (‘2024’ investigations’). Some of the 2024 investigations bore some fruit: others seem to have reached a dead end. However, the 2024 investigations have not enabled HM to identify and provide further particulars of the three priests.
The current applications
On 19 February 2024, the defendant issued the stay application, seeking, among other things, a partial stay of the proceeding insofar as it concerns HM’s allegations of sexual abuse. In the alternative, the defendant sought orders striking out the paragraphs of the amended statement of claim in which the claims of sexual abuse were made. I do not propose to deal at length with the strike out application in these reasons, as I consider, for reasons which will be explained later that the applications rise and fall together.[5]
[5]The State, which was joined to the proceeding as a third party on 26 April 2024, supports the stay application, but has not taken an active part in the stay application.
The defendant says that HM’s claims of sexual abuse should be stayed because HM’s inability to identify the three priests means that it is not possible for the defendant to have a fair opportunity to respond to and to defend those claims.
In response, HM says that, in the current legal context (including the High Court’s recent consideration of the effect of the abolition of limitation periods upon the principles governing applications of the current kind),[6] the defendant must clear a very high bar in order to persuade the Court that HM’s sexual abuse claims should be stayed. The defendant has not cleared that bar, and while the inability of HM to identify the three priests creates a forensic impediment to both parties, the other evidence and information available to the parties as a consequence of their investigations will enable the parties to have a fair, if not perfect trial. In any event, to the extent that the lapse of time between HM’s residence in the home and the issue of this proceeding has caused the defendant prejudice, part of that prejudice is attributable to the defendant’s own failure to promptly investigate claims of abuse at the home made by other former residents of the home (‘claimants’) since 1999 and HM’s claims, which were notified to the defendant in late 2019.
[6]The three recent High Court decisions which have considered these principles are GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 (‘GLJ’), Willmot v Queensland [2024] HCA 42 (‘Willmot’) and RC v The Salvation Army (WA) Property Trust [2024] HCA 43 (‘RC’), with Willmot and RC delivered in the month prior to the hearing of the stay application. See also Weiden v YZ (a pseudonym) (No 2) [2023] VSCA 294 (‘Weiden (No 2)’), CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313 (‘CM’), and Colbert v Trustees of the Christian Brothers [2024] VSC 309 for recent applications of the decision of the High Court in GLJ.
The defendant’s application for a stay is unsurprising, given the forensic difficulties associated with the lapse of time since HM resided at the home, and HM’s inability to identify the three priests. However, I am not satisfied that the defendant does not have sufficient information and evidence available to her to enable her to fairly defend HM’s claims in this proceeding. Accordingly, the stay application will be dismissed.
My reasons follow.
The legislative context
This proceeding was issued in April 2022, some 55 years after HM left the home. Prior to the enactment of the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic), HM’s claims against the Sisters would have been time barred.
Section 27O(1) of the Limitations of Actions Act 1958 (Vic) (‘LAA’) provides as follows:
27O Application of Division
(1) This Division applies to an action if the action—
(a)is in respect of a cause of action to which this Part applies or extends; and
(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.
Section 27P of the LAA provides as follows:
27P No limitation period for certain actions
(1)An action to which this Division applies that is not an action that arises under Part III of the Wrongs Act 1958 may be brought at any time after the date on which the act or omission alleged to have resulted in the death or personal injury has occurred.
(2)Subsection (1) applies whether the act or omission alleged to have resulted in the death or personal injury occurs before, on or after the commencement of section 4 of the Limitation of Actions Amendment (Child Abuse) Act 2015.
Section 27R of the LAA provides as follows:
27R Interaction with other powers of court
Nothing in this Division limits—
(a)in the case of the Supreme Court, the court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
(b)in the case of a court other than the Supreme Court, the court's implied jurisdiction or statutory jurisdiction; or
(c)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
The impact of the abolition of the limitation period in child abuse cases upon the principles which traditionally governed the application of the Court’s inherent power to stay a proceeding on the grounds that the passage of time would render the trial unfair is discussed in a later section of these reasons.
The evidence
The evidence filed on behalf of both parties with respect to the application was detailed and voluminous, with the material running to some thousands of pages. While I will not reproduce all of this evidence in these reasons, it is necessary to summarise that evidence in some detail, given the fact-specific nature of the current inquiry. I will conclude this section of the reasons by summarising the factual conclusions relevant to the stay application that can be drawn from the evidence.
The stay application was accompanied by the first Leder affidavit, in which Mr Leder deposed as to the following matters:
(a) in a notice of claim provided to the Sisters by HM’s then-solicitors[7] in 2013 (‘2012 claim’),[8] HM made reference to allegations of physical and emotional abuse, but made no reference to allegations of sexual abuse;
[7]These solicitors had also acted for many of the claimants from about 1999.
[8]This claim was actually made in about 2012.
(b) there were no references to sexual abuse in any of the clinical records discovered by HM to date;
(c) the defendant instructed him that the first time the Sisters had been notified of HM’s claims of sexual abuse was when the Sisters were served with the statement of claim in April 2022;[9]
[9]Mr Leder corrected this evidence in a later affidavit. HM’s solicitors sent a letter to the Sisters making allegations of sexual abuse by three priests in November 2019, but more detailed particulars were provided in the statement of claim served in April 2022.
(d) he detailed the steps taken by the defendant and her solicitors to investigate HM’s claims, in particular, the identity of the three priests, including enquiries made of four male religious orders and/or congregations known to have had some association with the home (‘other Catholic orders’), and deposed as follows:
As at the date of swearing this affidavit, the defendant has undertaken enquiries of multiple Catholic religious congregations and orders but has been unable to obtain any information or documents identifying any priests who may have had any involvement at the Home between 1964 and 1967;
(e) he referred to the discovery made by the parties to date in relation to HM’s time at the home, and noted that none of the discovered documents refer to any complaints, claims or reports of any abuse having been suffered by HM at the home; and
(f) he deposed as follows:
I have identified the following further categories of potential documents that would potentially be relevant to the present proceeding:
(a)records identifying persons who assisted at the Home during the Relevant Period, including Sisters and individuals not affiliated with the Sisters;
(b)records from the Home relating to the role, if any, performed by male priests, fathers, brothers or friars, at the Home during the Relevant Period;
(c)any documents relating to the operation of the Home, including any monitoring of the Home by the leadership of the Sisters, such as annual reports, visitations or meeting minutes; and
(d)contemporaneous documents or photographs which would reveal the physical layout of the Home and particularly the Nun’s quarters during the Relevant Period where the alleged sexual abuse occurred.
(the Further Relevant Documents)
However, after making enquiries of the defendant, I understand and believe that due to the lapse of time since the alleged abuse occurred, the fact that the Sisters ceased operating the Home as a care facility for children in about 1982 and the absence of details of the identities or identifying particulars of the three priests said to have perpetrated the sexual abuse:
(a) the Further Relevant Documents have not been located;
(b)it is unclear whether the Further Relevant Documents were ever previously in the possession, custody or power of the defendant;
(c)if the Further Relevant Documents were ever previously in the possession, custody or power of the defendant:
(i) what those documents were;
(ii) who prepared those documents;
(iii) when those documents came into existence;
(iv) what happened to such documents; and/or
(v) when or how those document[s] became unavailable.
(g) Mr Leder referred to the three Sisters referred to in the statement of claim, and deposed that Sr Giles died on about 16 May 2017, Sr Philomena died on about 5 April 1992, and further enquiries regarding the status and whereabouts of Sr Gregory were underway; and
(h) he deposed that the three Superiors of the home in the relevant period died in 1988, 2009, and 1989 respectively, and that both Regional Superiors of the Sisters during the relevant period are both deceased.
Annexed to the first Leder affidavit were documents relating to the 2012 claim, the 2020 claim, and the current proceedings including:
(a) a copy of the 2012 claim and psychological report dated 8 November 2011;
(b) a statement prepared by HM in February 2020 outlining her allegations of abuse,[10] and a medico-legal report prepared by Dr Michael Diamond dated 10 March 2020;
(c) for the present proceedings, a supplementary report from Dr Michael Diamond dated 19 October 2023, a forensic report from Dr Alan Jager dated 12 April 2023, correspondence between the parties concerning a dispute over the production of some of HM’s clinical records, the further and better particulars provided by HM on 4 December 2023, and correspondence between the defendant’s solicitors and the other Catholic orders for the purpose of attempting to identify the three priests.
[10]It seems that HM’s statement was not provided to the defendant until after the commencement of this proceeding.
Mr Leder swore a further affidavit on 1 March 2024 (‘second Leder affidavit’). In the second Leder affidavit, Mr Leder deposed, in summary, as follows:
(a) he corrected some statements in the first Leder affidavit, noting that the Sisters first received notice of HM’s claims of physical and psychological abuse in 2012, and later received a letter from HM’s current solicitors on 3 December 2019 making allegations of sexual abuse;
(b) he had been instructed that archival records held by the Sisters indicated that members of the Capuchin Friars may have attended the home during the relevant period, and that further enquiries were being made in that regard;
(c) further inquiries had revealed the identities of 16 members of the Sisters who served at the home during the relevant period and are now deceased, as well as the identities of four other Sisters about whom further inquiries were being made;
(d) he explained the reasons for the defendant’s delay in making the stay application; and
(e) he deposed to and exhibited the correspondence between the parties prior to the issue of the proceeding, and more recent correspondence with respect to the plaintiff’s discovery and related issues.
On 6 March 2024, Ms Sangeeta Sharmin, HM’s solicitor, affirmed an affidavit in response to the first Leder affidavit and second Leder affidavit (‘first Sharmin affidavit’). While the first Sharmin affidavit was largely directed at the defendant’s then-pending (and ultimately successful) application to vacate the trial date, in the first Sharmin affidavit Ms Sharmin also deposed as to certain matters relevant to the stay application, as follows:
(a) there appears to have been no investigations conducted into the allegations of physical and psychological abuse notified by HM’s previous solicitors to the Sisters in 2012 until November 2023;
(b) there appears to have been no investigations conducted into HM’s allegations of sexual abuse notified to the Sisters by HM’s current solicitors in December 2019 until November 2023;
(c) she has not been provided with any explanation of the further enquiries made by the defendant with respect to any further potential witnesses; and
(d) she deposed as follows:
Throughout the entirety of the proceeding, the correspondence of which is largely contained in my affidavit, no mention was made to me that the Defendant could not meet the Plaintiff’s claim or that the Defendant would or might apply for a partial stay of the Plaintiff's claim.
The Defendant mentioned for the first time that they were instructed to make an application to vacate the trial, apply for a stay and to add the State of Queensland as a Third Party (although the latter has not been sought) at the directions hearing on 3 February 2024.
Following orders being made on 18 March 2024 for the vacation of the trial date of 30 April 2024, on 6 May 2024, Mr Leder swore a further affidavit in support of the stay application (‘third Leder affidavit’). In the third Leder affidavit, Mr Leder deposed as to the following matters:
(a) in relation to Sr Gregory and the Sisters about whom further enquiries were to be made, two of the Sisters could not be located, and further enquiries were underway with the remaining three potential witnesses, being Sr Gregory, Sr Mary Finian, and Sr Mary Scholastica;
(b) the further enquiries made with respect to the other Catholic orders and the results of those enquiries to date; and
(c) he exhibited and commented upon documents produced to the Court pursuant to a subpoena directed to the Queensland Department of Child Safety, Seniors and Disability Services (‘Department’) including reports of monthly visits made by officers of the Department to the home in 1965 and 1966, and documents relating to HM’s application to the Forde Redress Scheme on 28 May 2008.[11]
[11]The Forde Redress Scheme was established by the Queensland Government in May 2007 to provide ex-gratia payments to child victims of abuse and neglect in Queensland institutions in response to the recommendations of a Commission of Inquiry established in 1998 (‘Inquiry’). In the statement annexed to HM’s application to the Forde Redress Scheme, there were some allegations made by HM about priests visiting the home sitting her on their knees and ‘having their hands all over’ her, but those allegations were not of the same character and specificity as set out in the statement of claim.
HM affirmed an affidavit on 7 June 2024, in which she deposed as follows:
I understand that one issue raised by the Defendant is my inability to recall information about the Priests who sexually abused me at Nazareth House, Wynnum, (“the Home”) between 1964 and 1967.
In around 28 May 2008, I made an application for an ex-gratia payment through the Queensland Government Redress Scheme. I understand that records from the Department of Child Safety, Seniors and Disability Services which [sic] (DCSSDS) show that on around 4 November 2008, a payment of $7,000 was approved as an ex-gratia payment and that this was subsequently deposited into a bank account. However, I have no recollection of ever receiving a $7,000 payment from the Redress Scheme. On around 8 September 2009, I accepted an amount of $22,000 as a further ex-gratia payment. I recall receiving the payment of $22,000.
These redress payments were for physical and psychological abuse I suffered at the Home during 1961 and 1967.
At the time I was not ready to discuss the specific details of the sexual abuse. However, the documents submitted to the Redress scheme do mention the Priests and that something of a sexual nature happened.
I also ticked yes to “sexual abuse” on the Redress Scheme Application. The definition of sexual abuse on the Redress Scheme Application was “suffering any act involving sexual penetration; suffering or being forced to person other sexual acts involving direct contact; any type of sexual touching by another person for their own or another person’s gratification (whether direct or though login); being forced, whether physically, emotionally or both, to touch another person sexually (whether direct or through clothing); exposure to another person’s sexual acts for their gratification.
I wrote a statement as part of the Redress application. In it I explained that Sunday was church day and all of the Nuns would sit at the back of the Church with their notebooks writing down the names of anyone who spoke or looked around. I talked about the visits by the priests. I said that they used to stay in the Nuns quarters that were off limits to everyone except I remember being there on many occasions, sitting on the Priest’s knees. having their hands all over me. The nuns were there so I thought it must have been okay.
In my statement I say “I know something awful happened to me over there but I can not remember I just remember that it was all wrong and I had no body to tell. Here were always the instructions “don’t tell anyone or you will be punished. There are so many blanks in my life at this time, I do not know why these things are blocked out of my head and I don’t want to know”…
This was my way of saying something happened without being explicit but without lying.
I did not report the sexual abuse explicitly because I was not ready at the time to disclose the sexual abuse perpetrated on me as a child. I felt embarrassed and disgraced for decades after the sexual abuse in a way which was different to the physical and psychological abuse. In this period, I did not feel able to disclose the sexual abuse to anyone.
HM also deposed that, to the best of her recollection, the matters set out in her statement made in February 2020, the history she provided to Dr Diamond for the purpose of his March 2020 report, the further and better particulars provided on 4 December 2023, and her answers to interrogatories dated 24 April 2024 are true and correct.
Ms Sharmin affirmed a further affidavit on 7 June 2024 (‘second Sharmin affidavit’). In the second Sharmin affidavit, Ms Sharmin:
(a) deposed as to correspondence between the solicitors for the parties regarding the adequacy of the defendant’s discovery, and exhibited that correspondence;
(b) referred to a schedule prepared by the defendant’s solicitors providing particulars of 22 claims brought against the Sisters since 1999 (‘schedule’);
(c) noted that Sr Gregory had mistakenly contacted her office on 23 April 2024 regarding an appointment she had with the defendant’s solicitors;
(d) opined as to the adequacy of the defendant’s investigations with respect to the other Catholic orders;
(e) referred to her queries to the defendant’s solicitors regarding their investigations regarding other potential witnesses and the failure of the defendant’s solicitors to respond to those queries, and exhibited the relevant correspondence;
(f) under the heading ‘Investigations not undertaken’, Ms Sharmin referred to her review of the documents produced by the Archdiocese of Brisbane (‘Archdiocese’) in response to a subpoena (‘subpoenaed documents’) and identified 94 people and organisations who she asserted could be contacted by the defendant’s solicitors, including past residents of the home, a number of whom were claimants;
(g) referred to some inconsistencies between the contents of the schedule and the subpoenaed documents;
(h) referred to communications she had with some claimants and summarised what those claimants had told her about their time at the home, and the attendance of priests at the home;
(i) referred to the categories of documents identified in the first Leder affidavit as no longer being available (see paragraph 25(f) of these reasons) and deposed as follows:
In relation to the first and second category, I believe that there are extensive Sisters, teachers, and individuals not affiliated with the Sisters outlined in this affidavit with whom no contact has been made since 2012, when the Defendant first became aware of the Plaintiff’s claim in relation to physical and psychological abuse and 4 December 2019, when the Defendant first became aware of the Plaintiff's claim in relation to sexual abuse.
In relation to the third and fourth categories, I believe that there has been no evidence served that this information cannot be obtained from the sources referred to in the first and second categories, including the archivist. I also refer to the correspondence from KCA to W&K dated 21 May 2024 (which appears at pages 32 to 34 inclusive of “SS-1”) relating to inadequate discovery where we noted that the website which appears at pages 1122 to 1128 inclusive in the exhibit bundle produced to me and marked with the letter “SS-1” stated that the Sisters of Nazareth “Archive” holds documents from the 1850’s to the present date including categories of documents such as including Books and Rule and Constitutions of the Congregation, General Government and Administration, Regional Government and Administration and Local Communities and Apostolates as well as biographical and employment information for individual Sisters and “photographs”.
Exhibited to the second Sharmin affidavit were, among other things:
(a) the schedule;
(b) the subpoenaed documents; and
(c) a bundle of documents provided to her by a claimant (who I will refer to as GR for the remainder of these reasons), which revealed, among other things, that Mr Leder acted for the Sisters in relation to the claim made by GR in 1999.
The schedule was based on a document originally prepared by the solicitors for the defendant in the context of the dispute between the parties regarding the adequacy of the defendant’s discovery. The schedule identified 22 claimants (by number, not name),[12] the date on which each claim was made, the date it was resolved, the nature of the allegations, the alleged abusers, and the period during which the alleged abuse took place. Three claims were made on 11 January 1999, and a further eight claims were made on 25 January 1999. Sister Philomena featured throughout the schedule, and there were some similarities between the accounts of physical abuse provided by the claimants and the allegations made by HM in this proceeding.
[12]Later evidence suggests that the total number of claimants is around 25, not 22.
Twelve of the claimants referred to in the schedule made claims of sexual abuse. Of this group, nine made their complaints in 1999, one made a complaint in or around 2002, another in 2007, and the other in 2018. Of the group of twelve claimants who made claims of sexual abuse:
(a) five alleged they were sexually abused by an unnamed priest;
(b) two alleged they were sexually abused by a named priest (Father O’Reagan);
(c) one alleged they were sexually abused by an unnamed man;
(d) one alleged they were abused by Sisters and other women working at the home; and
(e) two alleged they were sexually abused but did not identify the name or gender of the perpetrator.
The version of the schedule prepared by the solicitors for the defendant had been edited by or at the direction of Ms Sharmin to highlight the thirteen claimants for whom HM’s solicitors had been able to identify documents concerning those claims amongst the subpoenaed documents to create the schedule. Of the remaining nine claimants for which documents had not been identified, four of the claimants had made allegations of sexual abuse.
The subpoenaed documents were exhibited to the second Sharmin affidavit. The subpoenaed documents are voluminous, comprising some 939 pages, with some duplications. The vast bulk of the subpoenaed documents were documents regarding claims made by the claimants (‘claim documents’). The claim documents had been provided to the Archdiocese because the solicitors for the claimants had threatened to join the Archdiocese to proceedings that had either been issued or were to be issued by the claimants against the owner of the land upon which the Sisters operated the home. The Sisters also sought contributions from the Archdiocese towards settlement payments paid to claimants pursuant to a settlement process agreed between the Sisters and the claimants in or about 2000 (‘settlement scheme’).
The subpoenaed documents also included internal documents of the Archdiocese concerning the claims and the perceived legal risk to the Archdiocese (and the Sisters) arising from the claims. Given the volume of the subpoenaed documents, and in the interests of expedition, I will only refer to documents of particular relevance to the current proceeding and the stay application, as follows:
(a) a file note dated 9 April 2013 refers to 18 claimants, six of whom referred to sexual abuse by priests. Only one claimant named a priest. The file note included a table identifying the sums paid to some of the claimants pursuant to the settlement scheme, which ranged between $30,000 and $75,000, with higher sums being paid where an allegation of sexual abuse was made;
(b) letters of advice and correspondence between solicitors (including Mr Leder acting on behalf of the Sisters) regarding the settlement of the first tranche of claims in or about 2001 show that the Sisters’ desire to settle the claims was based upon a ‘pastoral and commercial decision’. The settlement sums were based upon recommendations made by David Habersberger QC (as his Honour then was), who met with all of the claimants along with an independent psychiatrist as part of the settlement scheme. It is also apparent from this correspondence that the claimants would face difficulties in overcoming statute of limitation issues and the ‘Ellis defence’;[13]
[13]Given that the Sisters of Nazareth was an unincorporated association.
(c) a letter of advice from Minter Ellison, the solicitors acting for the Archdiocese to the Archdiocese dated 10 June 1999 which stated, among other things, that
the plaintiffs do not intend to join the Capuchins or the Oblates because they consider joinder of the Archdiocese and the Archbishop to be sufficient. We spoke to Corrs Chambers Westgarth[14] who act for the Sisters of Nazareth to enquire as to whether they will join the Orders in the event that their client is joined as a third defendant. They indicated that their client would be disinclined to join the Orders for the same reasons that we were hesitant about doing so;
[14]Mr Leder’s former firm.
(d) a letter from the Chancellor of the Archdiocese to the Archbishop dated 15 June 1999 regarding the claims stated ‘Only one priest of the Archdiocese is named. An Oblate and two Capuchins are also named’;
(e) on 2 November 2004, Minter Ellison notified the Archdiocese that eight new claims had been issued by former residents of the home, and that one claimant alleged that she had been sexually abused by Father O’Reagan, a member of the Oblates, in the 1950s;
(f) on 7 September 2004, QBE Insurance Ltd (‘QBE’) sent a letter to a firm of solicitors acting for the Archdiocese, Thynne & Macartney, regarding a new batch of claims (ten in total), which was somewhat critical of the efforts made by the Archdiocese to investigate the claims. This letter stated, among other things:
We have still not had an adequate response to issues raised following our visit in October 2003. For example, Jeremy Howes[15] had agreed to investigate and identify matters in the pipeline. By our letter of 4 November 2003, we sought clarification of a limited response but have not heard anything further. We also made clear our need to have further particulars of Diocesan, and other, records dealing with appointments, transfer, discipline and so on of priests against whom claims have already been made - Frs. Stanaway, McLachlan and Derriman to name just three. To that we now add Fr. O’Reagan, who figures at least twice in the Nazareth House events, and all the other alleged offenders for whom the Archdiocese may have or be alleged to have a responsibility. The personnel files would be a good starting point - plus parish visitation reports, diaries etc. of the Bishop , Vicar General etc.
[15]An officer of the Archdiocese.
We also referred in correspondence to documentation provided by the reports derived from the Towards Healing processes. The Protocols provide for reports to church authorities. In the absence of independent investigation into complaints, those reports, however confidential, are an essential source of detail necessary to substantiate any claim and/or the Archdiocese’s (or QBE's) defence to claims. Naturally, we respect the confidential nature of the reports but they appear likely to be the only reliable source weighing fact and fiction. May we see them please.
If indeed there are now at least thirteen new claims in the pipeline, maybe it would be appropriate for us to visit Brisbane again to look at whatever material you have. This time, we would hope to have, mutually, a more developed understanding so that material relative to the indemnity as well as liability issues is available for examination.
(g) on 7 November 2007, Minter Ellison wrote to the Archdiocese in relation to the settlement negotiations underway between the Sisters and the second group of claimants, as follows:
Apparently, the matters that contain the more serious allegation of rape have not reached settlement. The plaintiffs’ solicitors advised that this is because in the previous group of claims those entailing rape were offered $75,000 but this time Nazareth House has limited its offer to $36,000. No reason has been provided for the comparatively lower offers this time around.
(h) on 17 May 2007, the Archdiocese sent a letter to the Oblates enclosing claim details concerning an allegation was made in 2004 that Fr O’Reagan sexually abused a resident of the home in 1955-1956; and
(i) on 26 August 2009, the Archdiocese was notified of a complaint of sexual abuse by a priest made by a former resident of the home. Mr Howes of the Archdiocese wrote to the Catholic Professional Standards Office as follows:
I have no record of [redacted] in my records but I will check with Minters as they have all the details of all the writs issued against us in relation to Nazareth House.
From my records there have only been a few girls who have included allegations against priests (usually just the nuns). The two priests that have been named were Capuchins as they staff the Wynnum Parish. Neither were “Fr John’s”
We have never had to contribute anything to any of the settlements with the various claimants - the Sisters of Nazareth have done all of this. I’m not sure whether they have ever gotten anything out of the Capuchins.
Further correspondence in the subpoenaed documents indicates that this claim was settled by the Sisters in around late-2009.
Also exhibited to the second Sharmin affidavit was a bundle of documents provided to HM’s solicitors by GR (‘GR documents’). The GR documents included:
(a) a letter from GR’s solicitor to GR dated 29 September 1998 advising GR that a detective hoped to interview Fr O’Reagan ‘next week’, that Sr Philomena was deceased, and Sr Bernard Mary was now living in London;
(b) a collection of news articles regarding the home and the death of Fr O’Reagan in October 1998;
(c) a photograph taken of residents of the home after a confirmation ceremony in 1966 and an attached list of names prepared by another former resident of the home (including HM);
(d) an undated newspaper article which referred to a body set up by the Catholic Church in Queensland to investigate claims of abuse, the Provincial Professional Standards Resource group, and a survivor’s support group established by a former resident of the home;
(e) a document headed ‘Response from Sister Bernard Mary’ in relation to claims of abuse with a handwritten notation ‘Feb 99’;
(f) some documents regarding the Inquiry and the Forde Redress Scheme; and
(g) correspondence between GR’s solicitor (who also acted for the other claimants) and Mr Leder between May and July 2000 referring to the settlement negotiations between the claimants and the Sisters which led to the appointment of Mr Habersberger QC (as his Honour then was) and an independent psychiatrist to assess the quantum of each claim. GR’s solicitor reported that he attended a conference in May 2000 with Mr Leder, a solicitor representing the Archdiocese, and two senior members of the Sisters, being Sr Mary and Sr Bernard.
The document referred to at paragraph 39(e) above was a seven-page typed statement headed ‘Response from Sister Bernard Mary’.[16] The statement identified five female residents of the home, their dates of birth and the dates upon which they were admitted to or discharged from the home. Sr Bernard Mary commented upon what she knew about each of the named residents and throughout the statement, she emphatically denied any allegations of mistreatment or sexual abuse, painted a somewhat idyllic portrait of life at the home, and referred to Sr Philomena with great admiration.
[16]There are other documents in the materials which suggest that this statement was submitted to the Inquiry in response to statements given to the Inquiry by former residents of the home.
Mr Leder swore a further affidavit on 18 October 2024 (‘fourth Leder affidavit’). In the fourth Leder affidavit, under the heading ‘Additional investigations — Witnesses’, Mr Leder deposed, in summary, as follows:
(a) Ms Ida Waite, formerly known as Sr Mary Scholastica (‘Sr Scholastica’) provided a witness statement. Mr Leder exhibited the witness statement dated 27 August 2024, and deposed that Sr Scholastica:
(a)was placed at the Nazareth House in Wynnum in the State of Queensland (the Home) from 1966 to 1975;
(b)never witnessed any priests engage in sexual abuse of any children at the Home, nor did she ever hear of, or become aware of, any such allegations during her time at the Home;
(c)recalled that priests from both the Capuchin Friars and Oblates of Mary Immaculate would say mass at the Home;
(d)recalled that priests from both the Augustinians and Redemptorist Fathers may have also attended the Home in the context of providing retreats for the Sisters during her time at the Home;
(e)did not recall any child being taken into the parlour to meet with a priest or of any child ever being left alone in any room with a priest; and
(f)never witnessed (and nor was she aware of) any priest and/or child going to the convent at the Home where the nuns resided, with the sole exception for a priest attending the convent to administer last rites to a dying Sister.
(b) further enquiries have identified four other Sisters who were involved with the home between 1959 and 1969 in addition to those referred to in his previous affidavits. Two of those Sisters are still alive, being Sr Margaret (see paragraph 58 of these reasons), and Sr Carmel Marie, who may be living in Queensland, but her identity and location have not been confirmed;[17] and
[17]In the fourth Leder affidavit, Mr Leder deposed at some length to the efforts made by his firm to locate Sr Carmel Marie. Two possible matches have been found with Sr Carmel Marie’s birth name in Queensland, but telephone enquiries to date have been unable to confirm whether Sr Carmel Marie’s identify and location.
(c) Mr Leder deposed as follows:
As a result of the enquiries detailed above and in my previous affidavits, I am instructed by the archivist that, to the best of the defendant's knowledge:
(a)all Sisters who were placed at the Home between 1959 and 1969 have been identified in the affidavit material; and
(b)the defendant has no other information or documents within its possession, custody or power which identifies any other Sisters or staff at the Home during that period.
However, due to the lapse of time and the resultant loss of documentation and unavailability of witnesses, I am instructed by the archivist that it cannot be definitively confirmed as to whether there were any other individuals, being members of the Sisters or otherwise, who had involvement at the Home between 1959 and 1969.
Mr Leder deposed at some length as to the enquiries made regarding the other Catholic orders. In relation to the Capuchin Friars, Mr Leder deposed as follows:
On 29 August 2024, Peter Ivory of Makinson d’Apice Lawyers provided a further email response. Mr Ivory indicated that the Provincial Delegate had spent some time in the Provincial Curia archive of the Capuchin Friars performing a search for information on the Capuchin Friars in Wynnum from 1964 until the end of 1967 and their involvement with the Home. Mr Ivory indicated that he was instructed by his client that:
(a)between 1964 and 1967 [being the period of the alleged sexual abuse of the plaintiff, as per paragraph 10 of the FASOC), there were two houses of Capuchin priests in Wynnum, with one in Wynnum North and one in Wynnum Central;
(b)it was the Provincial Delegate’s understanding that all the priests named in the list were now deceased, apart from Fr Bonaventure Rodighiero who it was understood may be alive but had left the Capuchin Friars some time ago;
(c)in the appointment of Capuchin priests to Wynnum, there was no mention of any appointment to ministry to the Home in any of the archives;
(d)a noted characteristic of Capuchin priests between 1964 and 1967 was that priests who could grow a beard usually had one and their cassocks were dark brown. Neither of these characteristics were noted in the description of the three priests by the plaintiff;
(e)although Capuchin priests wore dark brown cassocks on a day-to-day basis, when the priests conducted Mass they wore white albs or vestments over their cassock, sometimes tied with coloured, rope like cords; and
(f)there were other priests who were not Capuchin priests who were living and working in Wynnum between 1964 and 1967, including priests of the Oblates.
Mr Ivory also provided a list and some images of the Capuchin priests residing in the houses in Wynnum North and Wynnum Central and who fell within the age description of the alleged perpetrators as provided by the plaintiff.
In relation to the Redemptorist Fathers, Mr Leder deposed as follows:
On 4 June 2024, Mr Lee of Carroll & O'Dea Lawyers provided an email response in which he indicated that he was instructed by the Redemptorist Fathers to provide the following information:
(a)between 1964 and 1967, being the period of the alleged sexual abuse of the plaintiff, there were five priests of the Redemptorist Fathers who frequented the Home;
(b) all five of those priests are now deceased; and
(c)during the period of 1964 and 1967, four of the priests were aged in their sixties and one was in his fifties.
Mr Leder confirmed that the defendant had already completed all relevant enquiries regarding the Augustinians and the Oblates, and exhibited extracts from the website of the Oblates to show what outfits their priests wore while conducting Mass.
Mr Leder deposed as to further enquiries made of the Archdiocese, as follows:
On 20 August 2024, Dr Sean Gomes of the Archdiocese provided an email response. Dr Gomes provided a bundle of documents which included reference to the following matters, and confirmed that beyond that bundle, the Archdiocese did not hold any other documents relevant to the request:
(a)a newspaper article from the Catholic Leader dated 11 June 1964 which refers to Fr Rudolf BlocKinger of the Capuchin Friars as having said Mass at the Home in 1964;
(b)letters to and from Rev. Francis Gleisner and the Archbishop’s office dated 14 and 17 July 1965 which refer to the Archbishop granting permission and the Faculties of the Archdiocese to the priests of the Redemptorist Fathers to conduct missions and retreats within the confines of the Archdiocese, including retreats for Sisters or nuns;
(c)a list of the priests of the Redemptorist Fathers residing at the community in Oxford Park as at July 1965; and
(d)letters to and from the Archbishop of Brisbane and Mother Malachy dated 20 July 1966, 21 July 1966, 20 January 1967 and 26 January 1967 which refer to the Archbishop:
(i)granting permission and the Faculties of the Archdiocese for priests from the Redemptorist Fathers to give retreats to the children, old people and the Sisters at the Home in 1966;
(ii)granting permission and the Faculties of the Archdiocese for priests from the Oblates to give retreats to the children, old people and the Sisters at the Home in 1967; and
(iii)authorising priests from the Oblates to give a conference to the Sisters once a month at the Home in 1966 and 1967.
Mr Leder exhibited the bundle of documents provided to him by the Archdiocese, and deposed further as follows:
On 29 August 2024, Dr Gomes of the Archdiocese provided a further email response.
Dr Gomes indicated that there was a statement which was relevant to Wotton + Kearney’s previous request. Dr Gomes provided a link to a website containing a statement dated 28 August 2002 of Father James Spencer, the Chancellor of the Archdiocese at that time. In Fr Spencer’s statement, he stated that although the Archdiocese was aware of complaints against priests who ministered at the Home, all of those priests were deceased and were not priests from the Archdiocese but rather were from different religious orders.
Mr Leder referred to a document discovered by the defendant in her supplementary affidavit of documents on 3 May 2024, being what he described as the ‘History of Foundation document’ (‘Foundation document’), which was a 60-page handwritten document describing events and developments at the home. Mr Leder went on to itemise the numerous references in the Foundation document to priests of the other Catholic orders attending the home during the relevant period.
Mr Leder also referred to additional documents discovered by the defendant following correspondence between the solicitors for the parties which had been obtained from the Sisters of Nazareth Generalate Archives in London (‘London archive’), and discovered by the defendant on 18 October 2024. These documents included visitation reports made during the relevant period that referred to members of the Oblate Fathers, Augustinian Fathers and Capuchin Fathers attending the home, and bundles of documents relating to Sr Philomena and Sr Giles.
Mr Leder commented upon the clinical records discovered by HM in May 2024, observing that while there was a reference in those records to ‘abuse in the orphanage’, there was ‘otherwise no reference to particulars of the alleged sexual abuse, including as to the identity or identifying details of the alleged perpetrators’.
Mr Leder referred to the subpoenas issued in this proceeding to the Archdiocese, Catholic Church Insurance Ltd (‘CCI’), the Department, QBE, and Ms Mundy, and went on to depose as follows:
Notwithstanding the further discovery of the plaintiff and defendant, the discovery of the third party and the various subpoenas issued, including those which sought documents detailing the identities of male priests who had involvement at the Home and/or who were subject to complaints of sexual abuse at the Home up to and including 1967, the plaintiff has not provided any further information or particulars as to:
(a)the identity of any of the three priests who committed the alleged sexual abuse;
(b)any further identifying details of the three priests who committed the alleged sexual abuse beyond the details already disclosed in the course of this proceeding; or
(c)the identity of the religious order(s) or congregation(s) of which the three priests who committed the alleged sexual abuse were members.
Further, the defendant's legal team have reviewed these various documents and have not identified anything within this material which provides further information in relation to any of these three matters beyond what has already been exchanged in the proceeding and detailed in my previous affidavits.
Mr Leder also referred to HM’s answers to interrogatories and further answers to interrogatories (see paragraphs 6 to 12 of these reasons), and the defence of the State to the defendant’s third party notice, in which the State said that it required further and better particulars of the three priests, and did not otherwise admit the allegations of sexual abuse.
As for HM’s application to the Forde Redress Scheme, Mr Leder deposed as follows:
I am instructed by the defendant and the archivist of the defendant that the defendant:
(a)has no documents in its possession, custody or power in relation to the plaintiff's application to the Forde Redress Scheme, other than what documents have been discovered in the course of this proceeding by the plaintiff and the third party, and produced by the [Department] pursuant to subpoenas;
(b)was not a party to the Release, Discharge and Indemnity entered into between the plaintiff and the State of Queensland on 14 November 2008 in relation to the plaintiff’s acceptance of redress through her application to the Forde Redress Scheme; and
(c)otherwise has no documents or evidence to suggest that it was ever on notice of the particulars of the plaintiffs redress application.
In the documents relating to the plaintiff’s application to the Forde Redress Scheme discovered by the plaintiff and the third party and which have been produced by the [Department] pursuant to subpoenas dated 23 February 2024 and 12 June 2024, there are no documents evidencing that any information, particulars and/or documents relating to the plaintiff’s redress application were ever provided to the defendant.
Among the documents exhibited to the fourth Leder affidavit was a bundle of documents produced by the solicitors for the Capuchin Friars on 5 December 2023. The covering email stated as follows:
Dear Richard
We act for the Capuchin Franciscan Friars who have referred to us your letter dated 7 November 2023.
Our client has undertaken enquiries in relation to the matters raised in your letter.
We attach a document received from our client which lists the Capuchin Priests (Friars) who were resident at St Laurence’s Friary Wynnum North between 1963 and 1967. Unfortunately the record keeping during the period in question was less than perfect, but the provision of these names might trigger some memory for the Sisters. We are instructed there are no documents which record who attended Nazareth House, with what frequency and what role they had in relation to Nazareth House.
If you require any further information please let us know.
The list attached to this email indicates that between 1964 and 1967 there were between four and seven Capuchin Friars located in Wynnum at any given time. The black and white photographs provided were of large groups of men, and are of quite good quality. Many, but not all of the men portrayed were bearded, and they wore dark robes with girdles.[18]
[18]While this was not the subject of direct evidence, during the course of the hearing of the stay application, counsel for HM confirmed that the provision of these photographs had not triggered any recollection by HM of the identity of the three priests or any of them.
Also exhibited to the fourth Leder affidavit was correspondence between the parties regarding the then extant discovery dispute between the parties, the Foundation document, and some of the documents obtained from the London archive.
The defendant also relied upon an affidavit sworn by Ms Michelle Rich, a solicitor, on 18 October 2024. Ms Rich deposed that on or around 19 February 2024 she was informed that Sr Nuala O’Byrne (‘Sr Nuala’) was formerly Sr Mary Finian. Sr Nuala lived at the home between July 1963 and February 1964. Ms Rich was later informed by the defendant that Sr Nuala was elderly and had a poor memory. In August 2024, Ms Rich was informed by the Sisters’ archivist that Sr Nuala passed away on 10 July 2024.
Ms Rich conferred with Sr Nuala on 1 May 2024. Ms Rich deposed as follows:
Sr Nuala told me that she:
(a)had a limited role with the children at the Home as she was in a relief role and undertook duties such as helping to clean up the kitchen;
(b)had a recollection of there being several children at the Home who were sisters with the last name “[redacted]” but did not specifically recall the Plaintiff;
(c)never witnessed any sexual abuse of children at the Home by a priest nor was she ever made aware of any such allegations;
(d)never witnessed any physical abuse of residents by anyone at the Home. The only discipline which she witnessed was when children were put in a corner and told to be quiet; and
(e)recalled that priests would attend the chapel at the Home to say Mass. However, she did not attend Mass and was unable to recall the names of any of the priests or details as to which religious order or congregation they were from.
Ms Rich deposed further that Sr Margaret Catherine O’Keefe (‘Sr Margaret’) served at the home from August 1968 to February 1969. Ms Rich conferred with Sr Margaret in October 2024 and obtained a witness statement from her. Ms Rich exhibited Sr Margaret’s witness statement and deposed as follows:
In Sister Margaret’s statement, she states that, inter alia, that she:
(a) was at the Home from 5 August 1968 to 27 February 1969;
(b)was not at the Home at the same time as the plaintiff or Sister Mary Gregory;
(c)did not have any role with children at the Home and therefore did not have much contact with them;
(d)never saw a priest sexually abuse or behave inappropriately towards a child at the Home during her time there;
(e)never received a complaint or notification of alleged sexual abuse during her time at the Home;
(f)recalled that priests from the Capuchin Friars would visit the Home to conduct Mass;
(g)the priests who conducted Mass wore a white vestment over the top of their brown habit; and
(h)never witnessed or received a complaint of any child being physically or psychologically abused during her time at the Home.
The defendant also relied upon an affidavit sworn by Ms Samantha Saad on 18 October 2024. Ms Saad deposed that she and Ms Rich conferred with Ms Joan Mundy, (formerly Sr Mary Gregory, against whom allegations were expressly made in the amended statement of claim) on 23 April 2024 and 1 May 2024. Ms Mundy resided at the home between 3 January 1965 and 1 October 1967 and left the Sisters in around 1993.
Ms Saad deposed as follows:
Ms Mundy told us that during the period she resided at the Home:
(a)she was primarily involved in caring for children under the age of 5 years, and collecting funds for the Congregation;
(b)the Home was a two-storey building comprised of the children’s section on the ground floor and an aged care section on the second floor. There were large doors and religious statues at its entrance, and two parlours where visitors such as parents and social workers would sit;
(c)the children’s section of the Home was comprised of a recreational room, a dining room, classrooms including a kindergarten for the younger children, and the children’s dormitories. Ms Mundy resided in a small bedroom at the end of the dormitory where the younger children slept, so that she could attend to them if they required assistance during the night; and
(d)here was also a convent and a chapel, which were separate from the main building, but connected to it via a passageway. The convent was known as the ‘Sisters’ quarters’.
Ms Saad deposed that she informed Ms Mundy of the identity of HM and the allegations she has made in this proceeding, including the allegation that Sr Gregory was a perpetrator of physical and psychological abuse, and as being complicit in sexual abuse. Ms Saad deposed as follows:
In response, Ms Mundy told us that:
(a)she did not recall the name ‘[HM]’ at all and that while it was possible that the Plaintiff had resided at the Home while she was placed there, she had no recollection of the Plaintiff;
(b) she remembered Sr Philomena and Sr Giles;
(c)Sr Philomena was her supervisor at the Home and taught in the school there; and
(d)Sr Giles worked with the elderly women who resided on the second floor of the Home. Ms Mundy could not recall Sr Giles interacting with the children at all.
…
Ms Mundy told us that she denied that she had physically or psychologically abused the Plaintiff or any other child at the Home. She specifically denied:
(a) using any corporal punishment on the children that she supervised;
(b)striking or hitting any child, either with a feather duster, cane, belt or belt buckle;
(c)using methylated spirits on a child’s welts, or seeing any child with welts that had been caused by alleged physical abuse;
(d)forcing any child to eat out of a pig’s bucket. Ms Mundy told us that she could not recall there being any pigs or “pig’s buckets” on the premises and that she only ever saw children eat from ordinary plates;
(e)rubbing urine-soaked underwear in a child’s face, or making a child stand in a corner with urine-soaked underwear on their head;
(f) calling any child “useless”, “stupid”, or “the devil's spawn”;
(g)putting or locking any child in the scullery. Ms Mundy said that she could not recall the scullery door ever being locked; and
(h)telling the Plaintiff to wait in the recreational room for her mother to visit, when no such visit had been arranged. Ms Mundy told us that she was a junior Sister during the period she resided at the Home and had no involvement in arranging visits for children.
Ms Mundy also told us that she:
(a)never saw Sr Philomena, Sr Giles or any other Sister physically or psychologically abuse any child at the Home in the manner alleged by the Plaintiff or at all; and
(b)never received any notice of, or otherwise was made aware of, any allegations of physical or psychological abuse of children during the period she resided at the Home.
Ms Saad also deposed that she told Ms Mundy that HM had alleged that Ms Mundy had taken her to the nuns’ quarters and left her there with the priests who then sexually abused her. Ms Saad deposed as follows:
Ms Mundy told us that she denied that allegation and further said that:
(a)she never took any child to any part of the convent, which was the only area that was specially designated to the Sisters as it was not an appropriate area for children to be taken to;
(b) she never left any child alone or unsupervised with any priest;
(c)the only time that priests attended the Home was to give morning mass at the Chapel. She could not recall them attending the Home for any other reason or at any other time;
(d)she thought the priests who attended might have been from the Capuchin Friars but she was not certain;
(e)she could not recall the name of any priests who attended the Home to say Mass; and
(f)she never had any direct contact with the priests as she was not permitted to interact freely with those priests or with any other persons who visited the Home.
Ms Mundy also told us that she never saw Sister Philomena, Sister Giles or any other Sister take a child into the convent, or to meet with a priest alone, and she was not aware of any child ever being left alone or unsupervised with a priest. Ms Mundy stated that during the period that she resided at the Home, the children were not left alone in any circumstances, with there always being at least one Sister with them.
Ms Saad also deposed to discussions she has recently had with Ms Mundy’s brother regarding Ms Mundy’s health. Ms Saad deposed as follows:
On 5 September 2024, I spoke with Ken Mundy, Ms Mundy’s brother and Power of Attorney, in relation to Ms Mundy’s health and capacity. Mr Mundy told me that:
(a)Ms Mundy suffers from Parkinsons Disease and has recently been experiencing memory loss issues;
(b)Ms Mundy was admitted to hospital in Zurich, Switzerland on or around 13 June 2024, after having suffered a series of falls and sustaining fractures to her spine. Ms Mundy remained in hospital in Zurich for three weeks, before being transferred to the Alfred Hospital in Melbourne, Australia, and then to Box Hill Hospital on 17 July 2024;
(c)Ms Mundy remains in Box Hill Hospital and is suffering from several medical issues. It is unclear when she will be released from hospital; and
(d)Ms Mundy has provided a general Power of Attorney to Mr Mundy in relation to her medical and financial affairs.
Ms Saad exhibited a medical certificate from a doctor at Box Hill Hospital dated 19 August 2024, and deposed further as follows:
On 14 October 2024, I contacted Mr Mundy to enquire about Ms Mundy’s health and capacity. Mr Mundy told me that:
(a)Ms Mundy’s physical health has not improved and her capacity is deteriorating. She has experienced some recent delusional episodes.
(b)Ms Mundy remains at Box Hill Hospital. Her medical team are considering discharging Ms Mundy from Box Hill Hospital and arranging for her to be admitted to a transition facility for 3 months, though it is unclear when this will occur.
Given the deterioration in Ms Mundy’s physical health and memory, Ms Mundy was unable to provide a signed statement as to the matters set out above.
HM relied upon a lengthy affidavit affirmed by Ms Sharmin on 9 November 2024 (‘third Sharmin affidavit’) in opposition to the stay application. Much of the third Sharmin affidavit was argumentative in nature, in that it made submissions to the effect that:
(a) the defendant had failed to make adequate discovery;
(b) the defendant had not explained whether steps had been taken to further investigate a range of matters, and if not, why not, and if so, why those investigations had not taken place at an earlier time;
(c) the defendant’s solicitors had not explained whether they had put to Ms Mundy, Sr Margaret, or Sr Nuala evidence derived from the claim documents which contradicted the evidence and instructions they had given to the defendant’s solicitors;
(d) the defendant had not explained whether the lawyers for the other Catholic orders were provided with documents evidencing the attendance of members of the other Catholic orders at the home during the relevant time; and
(e) the defendant had failed to provide evidence to show that it has made adequate enquiries of potential witnesses, including any evidence regarding whether the sixteen Sisters identified by Mr Leder in the first Leder affidavit as now being deceased had been contacted by the defendant or her solicitors prior to their deaths.
Ms Sharmin noted that in the second Sharmin affidavit, she had deposed as to a number of investigations that she believed had not been undertaken by the defendant, and, to the best of her knowledge, had still not yet been undertaken. These investigations included:
(a) contacting the people referred to in the list of claimants and other former residents of the home derived from the subpoenaed documents exhibited to the second Sharmin affidavit; and
(b) contacting the legal firms and insurance companies involved in the settlement of the claims against the Sisters from 1999, noting that Mr Leder acted for the Sisters during this period; and
(c) Ms Sharmin deposed as follows:
To my knowledge at the time of affirming this affidavit, the Defendant has not:
(a)made investigations or attempted contact with any of the residents or teachers depicted in the 1966 photograph or Sister Theresa Marie or Rita Bladstall;
(b)made investigations or attempted contact with Patrician OC, Mother Malachi and Mother Malachi (Malacky);
(c) made a request for documents related to the Argos Taskforce;
(d)made a request for documents from the Provincial Professional Standard Resource Group; or
(e)made investigations in relation to Archbishop Duhig, Father Alyounis / Aloushious and / or Friar Tuck.
Ms Sharmin referred to the claim documents, along with further documents regarding additional claimants produced by the Archdiocese in a further tranche of subpoenaed documents in September 2024, and documents produced by CCI in July 2024. Some of these documents referred to claims of sexual abuse by priests at the home. Ms Sharmin deposed as follows:
To my knowledge at the time of affirming this affidavit, the Defendant has not:
(a)contacted these former claimants regarding the Plaintiff’s allegations or regarding the Home more broadly such as the accessibility the Priests had to the Home and residents; or
(b)made investigations with the Police as to which Priest was charged for abusing a resident at the Home.
In August 2024, Queensland Police produced records in relation to the Subpoena to Produce issued by the Plaintiff. These documents disclose that extradition proceedings were considered in relation to a Sister who was residing in the United Kingdom at the time in relation to the abuse she perpetrated against Victim KK, which by reference to other documents which exist in this matter is Sister Bernard Mary. To my knowledge at the time of affirming this affidavit the Defendant has not discovered any documents related to Sister Bernard Mary’s involvement with Interpol or the Police in Australia or the United Kingdom in relation to allegations she sexually and physically abused residents at the Home.
Ms Sharmin referred to the discovery made by the State, which, among other things, referred to a number of officers of the Department who had visited the home, and deposed that, to the best of her knowledge, the defendant has taken no steps to identify or contact those officers.
In the third Sharmin affidavit, Ms Sharmin also identified and exhibited a number of other documents that contained information that she considered could be the subject of further investigation by the defendant, including:
(a) a letter to the Archbishop dated 14 July 1965 which identified a number of Redemptorist priests who had attended the home;
(b) the documents discovered in the proceeding by the State;
(c) documents provided to her by a claimant which referred to perpetrators of sexual abuse by name;
(d) documents in the possession of QBE, to which the defendant objected to production;
(e) the Foundation document;
(f) documents, including photographs of Nazareth House, held by the Inquiry in its records;
(g) documents produced by Queensland Police which refers to complaints made about Sr Philomena in March 1998 (that is, after her death), and those complaints having been referred to the Argos Task Force. Queensland Police held no records of any complaints being made against Sr Giles or Sr Gregory; and
(h) a bundle of documents recording the participation of a group of former residents of the home in the Inquiry in late-1998, including a letter referring to the ‘Nazareth House Support Group’, and a rough sketch of the physical layout of the home prepared by a former resident of the home.
Mr Leder swore a further affidavit on 17 December 2024 regarding matters arising out of the defendant’s further discovery in December 2024. In particular:
(a) the defendant has discovered further claim documents. Mr Leder deposed as follows:
At no stage since the defendant’s supplementary discovery in May 2024, and notwithstanding further discovery in December 2024 of material relating to unrelated complaints of abuse, has Wotton Kearney received any correspondence from the plaintiffs solicitors alleging that any of the male alleged perpetrators referred to in that material were the same as any of the three priests who the plaintiff alleges sexually abused her at the Home.
(b) the defendant has obtained and discovered the file concerning the 2012 claim. Mr Leder deposed as follows:
Based on a review of the hard copy file relating to the plaintiffs prior civil claim against the defendant in approximately 2012/2013, I say that file does not contain any references to:
(a)any allegations that the plaintiff was subject to sexual abuse during her time at the Home;
(b)any allegations that the plaintiff was subject to sexual abuse or any other type of abuse or misconduct perpetrated by any priests or males during her time at the Home;
(c)any priests or males being at the Home generally during the plaintiff's time there; or
(d)the plaintiff's application to the Forde Redress Scheme in about 2008.
Finally, for completeness, the defendant and her successor, Sr Lusila Tautunu (‘Sr Lusila’) have sworn five affidavits of documents in this proceeding. In the first affidavit of documents sworn 16 October 2023, only a small handful of documents were discovered by the defendant.
In her supplementary affidavit of documents sworn 3 May 2024, the defendant discovered registry entries for Sr Philomena, Sr Gregory, and Sr Giles, and a personnel file for Sr Gregory. She also discovered files concerning 23 claimants who had made complaints against Sr Philomena. The defendant also deposed that she had not been able to locate or otherwise confirm the existence of documents in the following categories of documents:
(a) yearly reports on the overall operation of the home prepared by the Superior General of the Sisters during the relevant period;
(b) contemporaneous documents or photographs which would reveal the physical layout of the home, including the nuns’ quarters, during the relevant period;
The defendant’s submissions rely heavily on the alleged prejudice said to flow from the fact that the priests referred to in paragraphs 10-13 of the FASOC are unidentified by the plaintiff. In this specific context, and despite the disparaging remarks the defendant makes in written submissions, it is both entirely understandable and consistent with the nature of her claim and the class of claim under which it falls, that the plaintiff is unable to identify the relevant priests. That context includes the following matters:
a.at the time she was sexually abused, the plaintiff was a child aged about 8-11 years, resided at the Home and was entirely dependent on the defendant's care;
b.the sexual abuse was perpetrated by visiting priests who were present at the Home for a limited period of time, having said Mass;
c.the plaintiff was able to identify features including locations, aspects of the priest’s appearance and conduct, and those nuns that she was familiar with. The identity of those nuns is pleaded in the FASOC, namely Sister Gregory, Sister Philomena and Sister Giles, and other particulars are provided in answers to interrogatories;
d.it is feasible, and likely, that a visiting priest that chose to commit sexual offences against children at the Home might not readily disclose their identity to the child that they sexually abused;
e.the traumatic nature of the sexual abuse itself, well founded in the psychiatric expert material served; and
f.subsequent to the above, there were other complaints of sexual misconduct by visiting priests at the Home (discussed further below).
Put simply, the reasons that the plaintiff cannot identify the priests are commonplace to the institutional setting the plaintiff found herself in at the time she was abused. It is because of that setting, her age and her absolute vulnerability and dependence, that the plaintiff was able to be abused and with impunity. Adopting the language of the High Court, in a real sense the plaintiffs inability to identify the priests amounts to “routine and unexceptional sequelae of the harm caused by the alleged act the subject of the claim”.
In his submissions in reply, senior counsel for the defendant emphasised that the foundational issue concerning HM’s claims of sexual abuse is whether or not the alleged abuse occurred, and the identity of the perpetrators is relevant to that inquiry, and given that the three priests cannot be identified, the defendant cannot make proper inquiries about whether the abuse actually occurred.
Discussion
I accept that both parties, and in particular, the defendant, will face substantial difficulties at trial by reason of the inevitable impoverishment of evidence caused by, among other things, the passage of time. Nearly all of the potential witnesses who were adults during the relevant period are deceased or cannot be located, or, in the case of the three priests, cannot be identified. There are relatively limited documents which evidence how the home was conducted at the relevant time, or which evidence the precise nature of the involvement of members of the other Catholic orders in the affairs of the home, and in particular, the access they had to the residents of the home, whether that access was supervised or unsupervised, and what access they had to the nuns’ quarters. That said, the documents obtained by the parties during the course of the 2024 investigations have revealed more of what might be described as relevant contextual information than was available to the parties than at the time the stay application was issued in February 2024.
However, I do not consider that the impoverishment of the evidence by reason of the passage of time alone is so substantial, and so prejudicial to the defendant, such as to justify the exceptional step of staying the proceeding. The new regime created by the abolition of the limitation periods in child abuse cases and given effect by the recent High Court decisions means that matters such as the death or incapacity of witnesses (including the alleged perpetrators of abuse), and the absence of documents, are to be taken to be unexceptional. The fact that most of the Sisters and the priests of the other Catholic orders are deceased is an inevitable consequence of the passage of time.
Further, as discussed in more detail later in these reasons, I do not accept that the defendant is entirely precluded from testing at trial what I accept is a foundational issue (but not necessarily the foundational issue), being whether HM was sexually abused by the three priests. And, while I accept that the defendant has acted quite diligently and reasonably in pursuing her inquiries since late-2023, I also accept HM’s submissions that the discovered documents, the subpoenaed documents, and documents produced by other third parties during the course of the 2024 investigations contain information that opens up further potential lines of inquiry, in particular the claim documents and documents identifying other residents of the home during the relevant period (many of whom may still be alive and be capable of giving evidence).
It seems to me that the real difficulty facing the defendant in this proceeding is not her inability to locate relevant evidence: rather, I accept that it would be difficult for the defendant to locate exculpatory evidence given the passage of time. I accept that most of the readily accessible potential witnesses are the claimants, given that the defendant must know their identities. Any testimony by them is more likely than not to undermine the testimony of the Sisters to whom the solicitors for the defendant has been able to confer with the effect that no physical or sexual abuse occurred at the home, that the children at the home were under the supervision of the Sisters at all times, and the members of the other Catholic orders never had unsupervised access to the residents of the home.
However, it cannot be that difficulties in adducing exculpatory evidence amounts to relevant prejudice. The impoverishment of evidence must be such that the evidence available to the defendant, having regard to the other techniques capable of being deployed by common law courts which can ameliorate the difficulties caused by that (unexceptional) impoverishment, is incapable of facilitating a fair, if not perfect trial.
That the ability of the defendant to obtain evidence which she might be able to use to challenge HM’s evidence has been impaired does not, of itself, require a conclusion that the trial must necessarily be unfair is clear from the statement of the majority in RC[116] that:
A trial of the allegations is not unfair merely because a pathway to a successful challenge to RC’s evidence has not been revealed.[117]
[116]RC [2024] HCA 43.
[117]RC [35].
Rather, the question is whether the defendant has sufficient material to her to make an ‘informed response’ to HM’s claims.[118] In my view, largely by reason of the documents and other evidence obtained during the 2024 investigations, she does have sufficient material to make an informed response to HM’s claims, and has the opportunity to make further enquiries if she and those advising her choose to do so.
[118]RC.
I shall now turn to the issues and evidence regarding the availability or otherwise of witnesses, the state of the documentary evidence, the potential techniques available to the court to overcome the evidentiary difficulties in this case, and the primary issue raised by the defendant, being the inability of HM to identify the three priests, in more detail below.
Turning first to the availability of witnesses, the evidence is that most of the Sisters who served at the home in the relevant period are deceased. However, the defendant has, in 2024, been able to take instructions from three of the Sisters, all of whom deny emphatically that any abuse of any kind ever took place at the home, during the relevant period or otherwise.
Those denials can of course be put to HM and any other witnesses she calls to give evidence about what occurred at the home. What may well be more useful for the defendant’s purposes is the evidence they can give about the physical layout of the home and the way in which the spaces within the home were used, and what access to the home and the residents of the home the members of the other Catholic orders had. Those instructions could well be put to HM to support a proposition that the sexual abuse did not occur, and, by reason of the manner in which the home was conducted, could not have occurred. I note that there are mechanisms by which the evidence of Sr Nuala, Ms Mundy, Sr Margaret and possibly even the statement of Sr Bernard Mary provided to the Inquiry could be adduced by the defendant at trial.[119]
[119]Evidence Act 2008 (Vic), s 63.
As for the fact that most, if not all of the members of the other Catholic orders that attended the home, including most likely the three priests, are deceased, again this is simply an expected and unremarkable consequence of the passage of time. Further, it seems more likely than not that HM never knew the identity of the three priests. The members of the other Catholic orders who attended the home during the relevant period, which may have been in the dozens, means that while the passage of time may have impaired the ability of the defendant to conduct investigations into the identity of the three priests, it is by no means certain that those investigations would have borne fruit even if conducted decades ago. After all, it would be unlikely that the three priests would have come forward to identify themselves if enquiries had been made by the Sisters at an earlier time. Any prejudice to the defendant of HM’s inability to identify the three priests may have worsened by the passage of time, but it was not necessarily wholly attributable to the passage of time, and, as discussed later in these reasons, it is not necessarily fatal to the defendant’s ability to make an informed response to HM’s claims.
However, the death of most of the Sisters and the members of the other Catholic orders does not mean there are no living witnesses to what transpired at the home in the relevant period. The subpoenaed documents and the GR documents identify a number of residents at the home in the relevant period, including, but also in addition to the claimants. While one might expect many claimants may be reluctant to assist the defendant, and many of the other residents may be difficult to find, it is not unconceivable that many of the residents of the home are still alive, able to be located, amenable to approaches by the defendant’s solicitors, and may have evidence which is of assistance to the defendant one way or another. At the very least, one might expect the former residents of the home to be able to provide information about the physical layout of the home, and what parts of the home and the nuns’ quarters the priests and the residents were and were not able to access in the relevant period.
I accept that pursuing such enquiries may be expensive and time consuming. However, these are forensic choices that are open to the defendant to make. The statements in the authorities to the effect that a defendant is not required to follow up any avenue of enquiry available, however remote, may carry less weight in the wake of the recent High Court decisions, at least for the purpose of evaluating whether it is possible to have a fair trial. The need for defendants, particularly institutional defendants, to undertake difficult and burdensome investigations is arguably an inevitable consequence of the new legal landscape created by the Parliament when it abolished limitation periods in child abuse cases.
The position of the defendant in making enquiries of former residents of the home is somewhat different than defendants to claims in other institutional settings. By way of illustration, it may well be considered to be unreasonable for the operators of a school to be expected to make enquiries of all of their former students who attended the school in a given period many decades ago, who might have numbered in the thousands. On the other hand, the number of residents of the home during the relevant period would be considerably less than the number of students at a school, and it appears from the materials many of the residents lived at the home for a substantial part of their childhood.
As for the unavailability of documents, it seems to me that the significance of this issue is overstated, by reason of the very nature of this case. It is not contended by the defendant that an absence of relevant documents has unduly hampered her ability to defend the allegations of physical and psychological abuse made by HM. The instructions given by the defendant to her solicitors concerning HM’s allegations indicate that no reports of abuse were ever made by her to the Sisters prior to 2012, and indeed, even without those instructions, it seems to me to be highly unlikely that any such documents ever existed.
The first Leder affidavit referred to four categories of potentially relevant documents which have never been or no longer are available, being:
(a) records identifying Sisters and others who worked at the home;
(b) records relating to the role played at the home by members of the other Catholic orders;
(c) records relating to the operation and management of the home during the relevant period; and
(d) documents, including photographs, showing the physical layout of the home and the nuns’ quarters.
The evidence in the first Leder affidavit pre-dated the 2024 investigations, which involved the production of the subpoenaed documents, the completion of the enquiries regarding the other Catholic orders, the discovery by the State, the production of the GR documents and documents provided to HM’s solicitor by other claimants, and documents discovered by the defendant following searches of the London archive. Each of these exercises resulted in the production of some documents in each of the above categories. Indeed, the defendant has now been able to identify many, if not all, of the Sisters who served at the home during the relevant period through its investigations, albeit most of whom are now deceased. Accordingly, while the documentary record has been impoverished by the passage of time, the cupboard is not completely bare.
And, of course, there are the claim documents. While the claim documents may not be of particular assistance to the defendant, given that they most likely record accounts of events which undermine the Sisters’ denial of allegations of abuse, they also provide a means by which the evidence of HM can be tested against the accounts of others.
I repeat my earlier observation that the inability of the defendant to obtain exculpatory evidence, as opposed to any evidence, is unlikely to be relevant prejudice. Rather, the evidence in the claim documents, along with the evidence of any claimants and other former residents of the home, will assist the defendant to make an informed response to HM’s claims. By way of illustration, the information in the claim documents may assist the defendant and those advising her as to the likelihood or otherwise of the evidence of the three Sisters who have conferred with the defendant’s solicitors, if admitted, is likely to be accepted. The fact that HM makes no claim that any of the priests against whom allegations of sexual abuse have been made by some of the claimants does not render the evidence of the claimants and in the claim documents valueless. How helpful that evidence is to either HM or the defendant is a matter for trial.
As for the techniques available to the Court to attempt to overcome or ameliorate the difficulties created by the passage of time, as observed by the plurality in Willmot,[120] the techniques available to trial judges to address imbalances and deficiencies in the evidence have not changed, but, in the new legal landscape formed by the abolition of limitation periods in sexual abuse cases, they will need to be deployed more frequently.[121] Principles and techniques likely to be of particular relevance in any trial of the current proceeding include the principles arising from the decisions in Briginshaw v Briginshaw,[122] Jones v Dunkel,[123] and Watson v Foxman.[124] Further, a court is required to scrutinise any claim based upon an interaction with a deceased person very carefully,[125] and a court is not bound to accept uncontradicted evidence. And, while the failure of HM to make a complaint about the sexual abuse until 2019 is not something that can be the subject of criticism in the context of the stay application, it can be the subject of cross-examination and submissions at trial.
[120]Willmot [2024] HCA 42.
[121]Willmot [31].
[122]Briginshaw v Briginshaw (1938) 60 CLR 336.
[123]Jones v Dunkel (1959) 101 CLR 298.
[124]Watson v Foxman (1995) 49 NSWLR 315.
[125]Willmot [30].
Finally, I accept that the inability of HM to identify the three priests or any of them distinguishes the present case from the circumstances in GLJ[126] and the other cases which postdated the High Court’s decision in GLJ,[127] necessarily prejudices the defendant, although the strength of HM’s case is not assisted either. However, as indicated earlier in these reasons, while the matter is not entirely free from doubt, it seems from the materials that this is not prejudice caused by the passage of time: it seems that HM never knew the names of the three priests. That is, even if HM had brought her claim within the original limitation period applicable to her claims of abuse (that is, by about 1980), she would not have been able to identify the three priests, although, given that the home was operating as a children’s home until 1982, and Sr Philomena was still alive, the Sisters would have been in a better position to make further enquiries of its own members and members of the other Catholic orders. However, whether those enquiries would have borne fruit is a matter of speculation. In any event, as observed by the High Court in both GLJ[128] and Willmot,[129] citing cases involving nominated defendants in motor vehicle accident claims,[130] the courts have been able to deal with claims involving missing, unidentified and/or unknown defendants or perpetrators.
[126]GLJ (2023) 414 ALR 635.
[127]GLJ.
[128]GLJ (2023) 414 ALR 635.
[129]Willmot [2024] HCA 42.
[130]Holloway v McFeeters (1956) 94 CLR 470; Guest v The Nominal Defendant [2006] NSWCA 77.
I accept that the question of whether the abuse actually occurred is a foundational issue, and that the identity of the three priests is necessarily relevant to that inquiry. But I doubt that knowing the identity of the three priest is critically relevant to that inquiry. First, the evidence of the Sisters with whom the defendant’s solicitors have been able to confer is not just that they were unaware of any sexual abuse having occurred at the home: they say that it could not have occurred, because the residents of the home were under the constant supervision of the Sisters, the members of the other Catholic orders did not have unsupervised access to the residents of the home, and neither the residents of the home or the members of the other Catholic orders visited the nuns’ quarters. There is evidence that Sr Giles worked in the aged care facility at the home, not with the children. If that evidence is accepted, this evidence would undermine the veracity of HM’s account of sexual abuse, keeping in mind the other techniques capable of being deployed to test and assess the veracity of HM’s evidence.
That the defendant has lost the opportunity to attempt to identify and take instructions from the three priests, which has been consistently referred to in the recent decisions as being an expected and unremarkable consequence of the passage of time. The defendant has also lost the opportunity to make an informed response to HM’s claims based upon her knowledge of whether the alleged perpetrators ‘had form’. However, practically speaking, that seems to me to be more relevant to the defendant’s appraisal of her potential exposure to HM’s claims in the context of any settlement discussions than to the question of whether there can be a fair trial. And, in any event, the forensic impediments caused by HM’s inability to identify the three priests will be borne by HM as well: not only will her inability to identify the three priests detract from the credibility and reliability of her evidence, but she has lost any ability to rely upon any tendency evidence had one or more of the three priests had a track record of sexually abusing children, at the home or elsewhere.
The defendant relied upon the Pickering allegations, which were stayed, as being analogous to the current case, given that the alleged perpetrator was not properly identified, there were no witnesses, and the State had no way of investigating whether an elderly relative lived with the plaintiff’s grandmother at the relevant time. However, I consider than an important distinction between the Pickering allegations and HM’s allegations of sexual abuse is that the Pickering allegations concerned allegations of abuse made in a domestic setting, not an institutional setting such as the home. I also repeat my earlier observations regarding what information the defendant has and the evidence she may be able to adduce about what occurred and did not occur.
There is also another critical distinction between the ability of the defendant to scrutinise and test HM’s claims in the current case compared with the ability of the State to investigate the Pickering allegations, arising from the institutional context in which the claims have been made, being the potential availability of witnesses. HM says that no other resident of the home was present in the room in the nuns’ quarters where she was subjected to sexual abuse by one or more of the three priests. However, there may be other residents of the home who witnessed HM being taken to the nuns’ quarters by one or more of the three Sisters identified by HM. Conversely, if HM is unable to produce a witness or witnesses who can give evidence to that effect, at trial the defendant can ask the trier of fact to draw an inference from the absence of such evidence that the sexual abuse did not occur. In contrast, in Willmot,[131] the absence of any potential witnesses, and the domestic setting in which the alleged abuse occurred, means that the State had absolutely no means by which it could test the plaintiff’s account of events in relation to the Pickering allegations.
[131]Willmot [2024] HCA 42.
Accordingly, I am unconvinced that, in light of the observations made by the High Court in Willmot,[132] the inability of HM (and, as a consequence, the defendant) to identify the three priests, whether owing to the passage of time or some other reason, or a combination of reasons, could be considered to be an exceptional circumstance justifying a stay, given the institutional context in which HM’s claim is brought. As discussed during the course of the hearing of the application, one might expect that, in a school or parish or sporting club setting, victims of child sexual abuse would generally be able to identify their abusers by name, unless they were very, very young at the time. However, it seems to me to be quite unremarkable that in the setting of the home, where it is apparent from the materials, including the Foundation document, that there were a lot of comings and goings by numerous members of the other Catholic orders, that the members of the other Catholic orders would not necessarily be known to their victims by name. Indeed, the information in the schedule, which is no doubt sourced from the claim documents, indicates that most of the claimants who made claims of sexual abuse did not identify their abusers by name.
[132]Willmot [2024] HCA 42.
The institutional context is also relevant to the question of whether a trial is likely to be unfair by reason of the passage of time, as observed by the majority in GLJ[133] in the passage extracted at paragraph 84 of these reasons. The proposition that parties to a claim arising from conduct in an institutional context are likely to have access to documentary and other evidence regarding relevant contextual matters has been borne out by what has been produced and/or revealed by the 2024 investigations.
[133]GLJ (2023) 414 ALR 635.
The institutional context in which HM’s claims have been made is also relevant to the question of causation: that is, in the words of Edelman J in RC,[134] has the defendant established ‘…that, due to the lapse in time, there was a loss of opportunities that would have been pursued or evidence that would have been led with such potential benefit … to its defence that any trial would be unfair’.[135]
[134]RC [2024] HCA 43.
[135]RC [44]. However, I note the remarks of the plurality to the effect that a defendant to a child abuse claim is not entitled to a stay merely because the avenues to obtain evidence favourable to its defence of the plaintiff’s claim have been closed off. See the passages extracted at paragraph 105 of these reasons.
The claim documents are also relevant to the question of causation, in that they raise the issue of whether the impoverishment of evidence has been caused by the passage of time, or was caused or at least contributed to by the conduct of the defendant.
Contrary to the submissions of the defendant, the analysis of whether the defendant can receive a fair trial cannot be divorced from the evidence of what actually occurred in the decades after HM left the home. The evidence shows that the Sisters were alerted to claims of sexual abuse made by some of the claimants no later than January 1999. And, while the evidence regarding this issue is not entirely clear, it seems that the Sisters may well have been made aware of allegations of abuse by former residents of the home in 1998, when the Inquiry was established by the State. However, it seems that limited, if any, investigations were carried out at the time. As indicated earlier in these reasons, the failure of the Sisters to carry out such investigations was explicable, given the much more unforgiving legal landscape facing the claimants at the time, and the Sisters’ decision to engage in the settlement scheme for pastoral and commercial reasons.
However, the Sisters’ failure to investigate the claims made by the claimants when they were made renders somewhat hollow the defendant’s submissions as to what investigations could have been undertaken by the Sisters had HM made her claims at an earlier time. The best evidence available is that had HM made her claims at an earlier time, the Sisters would have done no more than what they did in response to the claims made by the claimants, that is, very little apart from inviting her to participate in the settlement scheme, or some equivalent process.
In some respects, the defendant’s position is somewhat analogous to the position of the defendant in RC.[136] In that case, there was evidence that, despite establishing a formal scheme for handling complaints of abuse in the 1990s, the practices and conduct of the Salvation Army were such that, realistically speaking, any complaints of abuse made contemporaneously or even decades after the abuse occurred would not have been investigated. As observed by Edelman J in his concurring reasons:
The short answer to the Salvation Army’s submissions is that whatever the strength of evidence concerning its apathy in relation to child abuse claims, at least some evidence from the Salvation Army was required to support inferences: (i) that the Salvation Army would have taken steps to investigate RC’s claim if it had been notified many years earlier than 13 July 2018; and (ii) that steps of that general nature are no longer available. The Salvation Army did not lead that evidence. It therefore failed to discharge its onus to show causally related prejudice.[137]
[136]RC [2024] HCA 43.
[137]RC [66].
Of course, each case turns on its own facts, and there is no evidence to suggest that the Sisters were afflicted with the ‘apathy’ said by the High Court to have inhibited the Salvation Army in relation to past reports of sexual abuse. The Sisters did do something in response to the claims made in 1999: they entered into the settlement scheme. But, in the absence of any evidence that, if HM had notified the Sisters of her claims of sexual abuse significantly earlier than 2019, the Sisters would have undertaken the types of investigations that the defendant now says she needs to undertake and says that she cannot now undertake, the Sisters have not discharged the onus of establishing that, by reason of the passage of time, the defendant is unable to receive a fair trial. There is no basis to conclude that the claims made by HM would have been treated any differently than the claims made by the claimants had she made her claim significantly earlier than she did. Accordingly, the defendant has not established the necessary causal link between the passage of time and an impoverishment of evidence that is exceptional in nature by reason of that passage of time. The defendant has simply lost the opportunity to do what all the evidence suggests would not have been done had the opportunity arisen at an earlier time.
In her written outline of submissions filed on 21 October 2024, the defendant identified some degree of precision on what steps she said could have been undertaken by the Sisters had HM made her complaint at an earlier time. The defendant says she has been precluded from investigating:
(a) whether the alleged sexual abuse occurred, including by:
i)obtaining evidence as to the response of the three priests to the allegations of sexual abuse, including as to whether they denied the allegations and/or had potential alibis;
ii)obtaining evidence as to whether the three priests have ever been subject to other claims of sexual abuse and/or been charged or convicted in that respect;
iii)obtaining evidence as to the response of Sister Philomena and Sister Giles to the. allegation that they would leave the plaintiff alone in the Nun’s quarters with priests; and
iv)determining whether there were any other witnesses to the alleged abuse and, if so, whether they are available to give evidence and/or to make enquiries of them of matters such as whether they witnessed the plaintiff being abused, whether they themselves were abused and/or whether they can identify the alleged perpetrators;
(b)the identity of the specific priests who attended the Home during the Relevant Period;
(c)confirmation of all the male religious orders and congregations which had involvement at the Home during the Relevant Period and the extent of such involvement (including whether it extended to the conducting of Mass), particularly in circumstances where there is evidence that any arrangement between the Sisters and male religious orders and congregations in this respect was “informal”;
(d)whether there had ever been any prior complaints of alleged sexual abuse or improper conduct by priests at the Home, or concerns more generally about priests at the Home, particularly in light of the allegation at paragraph 19 of the FASOC that the defendant had direct knowledge of a risk of sexual abuse to the plaintiff;
(e)other matters relevant to the allegations of sexual abuse, including as to whether priests were ever taken to the Nuns’ quarters and/or left alone with residents, whether residents were ever taken to the Nuns' quarters and what occurred after Mass was held on Sundays at the Home;
(f)matters relevant to the claim in negligence, including as to what systems were in place at the Home for the supervision of residents (including the plaintiff), Sisters and any visiting priests, and as to the nature and extent of any such supervision; and
(g)matters relevant to the nature and particulars of any formal or informal arrangement whereby priests from unrelated religious entity(/ies) conducted Mass at the Home including as to whether the priests were “employees” of the defendant, particularly in light of the allegations at paragraphs 10 and 45 of the FASOC.
All of the enquiries enumerated above are enquiries that any party in the position of the defendant would, acting prudently and responsibly, want to make in response to a bona fide claim of child sexual abuse unimpeded by traditional obstacles to relief such as the existence of a limitation period and the availability of the Ellis defence. No doubt the Sisters would have been better able to make such enquiries had HM brought her claims within the original limitation period, or perhaps even some decades later, when the other claimants brought their claims. But the best evidence available is that those enquiries would not have been made had she done so. It can also be inferred that Parliament, when it enacted the legislation abolishing the limitation period applicable to child abuse claims, did so knowing that many, many institutions would have conducted themselves in a similar way when faced with claims or complaints. Indeed, the ineffective response of many institutions to claims of historic child abuse identified during the course of the Royal Commission, along with the unforgiving legal landscape facing victims of child abuse, were what precipitated the legislative reforms of recent years, including the abolition of limitation periods for plaintiffs bringing claims of child abuse.
For completeness, the defendant says she is prejudiced by an inability to bring any third party claim against one or more of the other Catholic orders by reason of the inability of HM to identify the three priests. However, again, the evidence of concerning what transpired after the Sisters received the first tranche of claims in January 1999 casts doubt upon whether, even if HM had made her claims at an earlier time, and was in a position to identify the three priests or any of them, that the Sisters would have made any third party claim. There is reference in the subpoenaed documents to claims of sexual abuse having been made by claimants against members of the Capuchin Friars and the Oblate Fathers. However, reference was also made to the fact that the Sisters were reluctant to join those orders as third parties to the proceeding brought by the claimants, but that the Sisters were ‘disinclined’ to join those orders for unspecified reasons.[138] Once again, the only opportunity that the defendant has lost is the opportunity to do something that the evidence demonstrates what would almost certainly not been done had HM been able to identify the three priests, or any of them, or had brought her claims at an earlier time.
[138]See the letter of 10 June 1999 to the Archdiocese extracted at paragraph 38(c) of these reasons. In another letter dated 26 August 2009 (extracted at paragraph 38(i) of these reasons, Mr Howes of the Archdiocese wrote ‘I’m not sure whether [the Sisters] have ever gotten anything out of the Capuchins’ (during the course of the settlement scheme).
Finally, as for the position of the State, it has provided brief submissions supporting the defendant’s position in the stay application, but has not filed any evidence to identify any particular prejudice by reason of the passage of time. The State has adopted this position notwithstanding the fact that it has admitted in response to the defendant’s allegation in her third party notice dated 26 April 2024 that the State owned HM a non-delegable duty of care, that it owed HM a duty to avoid foreseeable, but not insignificant risk of harm and to exercise reasonable care for her safety.[139]
[139]Defence to third party notice dated 1 July 2024 [12].
Accordingly, the stay application will be dismissed.
The strike out application
I will now turn briefly to the defendant’s alternative application, being the application to strike out those paragraphs of the statement of claim where HM makes her claims regarding the sexual abuse perpetuated by the three priests. The defendant says that those paragraphs are embarrassing, in that ‘they are vague and ambiguous and lack the requisite material facts so as to establish a reasonable cause of action’.
In any other context, I would probably agree. I take no issue with the legal principles relied upon by the defendant to support its application to strike out the relevant paragraphs of the further amended statement of claim, or the defendant’s submission that there is a paucity of material facts and particulars provided to support HM’s claims. However, as I observed during the course of the hearing of the stay application, the function of pleadings is to aid a fair trial. It seems to me that in circumstances where HM has said that she has done the best she can in providing particulars of her allegations of sexual abuse, the defendant cannot achieve, through the vehicle of the strike out application, what she has been unable to achieve via an application for a stay by reason of the new legal landscape. Substance must prevail over form.
Accordingly, the applications in the defendant’s amended summons filed on 14 August 2024 will be dismissed. I will hear further from the parties on the question of costs.
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