HM (a pseudonym) v Sister Monaghan [2026] VSCA 104 (Link to JADE).
This matter involved historical child sexual abuse allegations. There was an application for a permanent stay on grounds of prejudice by reason of loss of evidence due to passage of time (1964 – 1967), noting also that the plaintiff unable to identify the alleged perpetrators. The court was required to consider whether the inability to identify the perpetrators was an exceptional circumstance justifying a stay.
Associate Justice Daly had dismissed an application by the defendant for a partial stay of that part of the proceeding which alleges sexual abuse.
Leave to appeal was grated but the appeal was dismissed. The Court held at [46] that although the identification of the priests would be relevant, and may assist the defence of the proceeding, the defendant had access to sufficient material so as to be able to adequately defend the action. Any trial would not, by reason of the inability of the parties to identify the priests, fall below the irreducible minimum standards of a fair trial and any prejudice can be adequately addressed by trial practice and procedure.
The plaintiff’s case was capable of being defended by the defendant for the following reasons:
1 The defendant can call Sister Gregory who will deny taking any child to the nuns’ quarters at Nazareth House — it not being an appropriate area for children to be taken to. Sister Gregory will also give evidence that she never left any child alone or unsupervised with a priest and that, during the period she resided at the home, children were not to be left alone in any circumstances, with there always being at least one sister with them. In her oral submissions, the plaintiff accepted that if she is unable to prove — on the balance of probabilities — that the alleged sexual abuse took place in the nuns’ quarters, her sexual abuse claim will fail.
(2) There are two other sisters at the home who ‘deny emphatically that any abuse of any kind ever took place at the home’ The evidence that can be called from these witnesses is that no abuse of any kind ever took place at the home because the residents of the home were under constant supervision and because neither residents nor members of other Catholic orders visited the nuns’ quarters.
(3) There is material enabling the plaintiff’s version to be tested. For example, in a notice of claim provided to the Sisters by the plaintiff’s then solicitors in 2013, she made reference to allegations of physical and emotional abuse, but made no reference to allegations of sexual abuse. Further, in her statement made in 2008 the plaintiff states: ‘I know something awful happened to me over there but I cannot remember I just remember that it was all wrong and I had nobody to tell’ and ‘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’.
(4) As the plaintiff accepted in oral submissions, by reason of her inability to identify them, the plaintiff is precluded from calling tendency evidence about the three priests which might otherwise assist her in proof of her claim.
The defendant also relied on the fact that she is unable to join a third party because she cannot identify the order or orders to which the allegedly offending priests were attached as a factor in favour of the stay. That submission was rejected as the joinder of a third party to seek contribution towards any judgment awarded in favour of the plaintiff or any difficulty in joining a potential third party says nothing about whether the trial as between plaintiff and defendant is fair.
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