HM (a pseudonym) v Sister Mary Monaghan - [2025] VSC 51

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 51
Decision Date: 25 February 2025

CaseChat Overview and Summary

The plaintiff, HM, brought an action against Sister Mary Monaghan, alleging sexual, physical, and psychological abuse while residing at a children's home in the 1960s. Sister Monaghan sought a permanent stay of the allegations of sexual abuse, citing forensic prejudice due to the passage of time, loss of evidence, and the death of key witnesses. The matter was heard in the Supreme Court of Victoria. The defendant argued that the inability to identify the alleged perpetrators and the loss of contemporaneous records and key witnesses made a fair trial impossible. In contrast, the plaintiff maintained that the forensic disadvantage stemmed from the defendant's failure to investigate prior complaints.

The court had to decide whether the forensic prejudice constituted 'exceptional circumstances' justifying a permanent stay and whether the legislative abolition of limitation periods affected the defendant's application. The court considered the high threshold for stay applications post-abolition of limitation periods and the extent to which loss of evidence and the passage of time justified a stay. The court examined cases such as GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, Willmot v State of Queensland, and RC v Salvation Army (NSW) Property Trust, among others, to guide its reasoning. It found that the legislative abolition of limitation periods required a high threshold to be met for a stay, and that the loss of evidence alone did not amount to 'exceptional circumstances' precluding a fair trial.

The court dismissed the stay application, concluding that the passage of time and the loss of evidence did not justify a permanent stay under the circumstances. The application to strike out the statement of claim was also dismissed. The court emphasised the importance of holding institutions accountable for historical abuses and the role of judicial techniques in mitigating evidentiary disadvantages. The decision underscored the need for a rigorous application of the 'exceptional circumstances' test in historical child abuse cases following the abolition of limitation periods.

Orders