Landmark Court Ruling: Why Abuse Survivors Can Sue Even If They Can’t Name Their Abusers

In a landmark decision handed down by the Supreme Court of Victoria, Court of Appeal, historical child abuse proceedings will be allowed to move forward even when a plaintiff cannot identify the specific perpetrators.

The judgment handed down on 21 May, by Chief Justice Niall, Justice Beach and Acting Justice O'Meara, unanimously dismissed an appeal by the Sisters of Nazareth, finding that the survivor's inability to identify the men who allegedly abused her as a child does not, by itself, make a fair trial impossible.

The allegations

The woman, identified by the pseudonym HM, was a ward of the State of Queensland placed under the care of the Sisters of Nazareth at Nazareth House in Wynnum, Brisbane, between roughly 1961 and 1967. She alleges that she suffered systemic sexual, physical, and psychological abuse during her time at the institution.

Her claim includes the allegation that on multiple occasions after Sunday Mass, she was taken by nuns to the convent's private quarters and left alone with a priest who had just said Mass, where she was sexually abused by the priest. She nominates three priests, distinguishing them only by hair colour, facial features and the coloured sashes - yellow, red and purple - that they wore over their white vestments.

On the basis that the woman was unable to provide any further identifying features, the Sisters applied to permanently stay the sexual abuse component of HM's claim, arguing it would be impossible to fairly defend allegations against perpetrators who can never be named or confronted. Associate Justice Daly refused the application in February 2025. The Sisters appealed.

The Ruling: Trials Don't Have to Be "Perfect" to Be Fair

The Court of Appeal granted leave to appeal but ultimately dismissed the Sisters' application, upholding a prior decision by Associate Justice Daly.

The court noted that while the absence of the perpetrators' identities creates evidentiary hurdles, it does not cross the high threshold required to grant a permanent stay, which remains an extreme "last resort". The judgment highlighted several factors:

• Sufficient Institutional Material: Despite the deaths of several potential witnesses, the defendant still possesses thousands of pages of historical documents, archives, and testimonies from surviving sisters to adequately construct a defence.
• Ordinary Incidents of Historical Litigation: Following High Court precedents like GLJ and Willmot, the court reiterated that the fading of memories, death of witnesses, and missing documentation are "routine and expected" outcomes of the legislated removal of limitation periods for child abuse.
• The Power of Trial Procedures: Common law courts possess long-standing procedural mechanisms and adjusted standards of weighing evidence to prevent injustices, meaning a trial can be fair without being flawless.

"Trials are rarely perfect and are not a general inquiry into the truth of past events... trials are not stayed merely because the evidence is incomplete."

What this decision means for institutional abuse litigation

This judgment carries profound implications for civil litigation involving institutional child abuse across Australia:

1. Shift of Liability to the Institution

Institutions can no longer escape liability simply because an abuser was an external contractor (e.g., a visiting priest) or remains anonymous. If a plaintiff can establish that the institution breached its duty of care or non-delegable duty by failing to protect them from a foreseeable risk within their walls, the case can proceed.

2. A Higher Bar for "Permanent Stays"

Defendants often rely on the "impoverishment of evidence" as a strategy to halt historical claims. This ruling clarifies that an abuser being dead, missing, or unidentified is an unexceptional feature of historical abuse litigation. Courts expect institutions to utilise modern discovery, third-party subpoenas, and archival data to defend themselves rather than seeking to shut down a survivor's pathway to justice.

3. Validation of Institutional Context

The court recognised that children in institutions often had no way of knowing the names or affiliations of the adults granted access to abuse them. By refusing to penalise survivors for this lack of knowledge, the court aligns the legal landscape with the psychological and physical realities of institutional concealment.
 

Balancing the Scales of Justice

Carbone Lawyers Associate, Erin Monsalve Fear, says this landmark judgment by the Court of Appeal represents yet another significant stride in balancing the scales of justice, shifting the legal landscape back toward the victims and survivors of historical institutional abuse. 

"By refusing to allow the inevitable gaps in decades-old evidence to act as an automatic shield for institutions, the court has sent a clear message: a survivor's right to seek accountability cannot be systematically derailed by the anonymity or death of their abusers."

"It marks a profound validation of the realities faced by vulnerable children in institutional care, ensuring that the path to justice remains open even when time has erased the names of the perpetrators," said Miss Monsalve Fear. 

Seeking Support

If this article raises personal issues or if you or a loved one requires legal guidance regarding historical institutional abuse, please reach out for professional advice. You can contact Carbone Lawyers to discuss your rights and options in a confidential, supportive environment.

 About Carbone Lawyers

Carbone Lawyers is a leading personal injury law firm in Victoria that has represented many people seeking justice for historic institutional abuse. 

To arrange an interview with Erin Monsalve Fear, please contact;
Ubi Formica at Hype Inc Agency
04128661118 
ubi@hypeinc.com.au