ARA v The Perth Diocesan Trustees - [2020] WASC 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ARA -v- THE PERTH DIOCESAN TRUSTEES [2020] WASC 188
CORAM:   KENNETH MARTIN J
HEARD:   1 MAY 2020
DELIVERED          :   1 MAY 2020
PUBLISHED           :   2 JUNE 2020
FILE NO/S:   CIV 1526 of 2020
BETWEEN:   ARA
Applicant
AND
THE PERTH DIOCESAN TRUSTEES
Respondent

Catchwords:

Civil procedure - Application to set aside settlement agreement and for leave to commence an action for a child sexual abuse cause of action - Whether 'just and reasonable to do so' - Turns on its facts

Legislation:

Civil Liability Act 2002 (WA)
Civil Liability Amendment (Child Sexual Abuse Actions) Act 2018 (WA)
Limitation Act 2005 (WA)

Result:

Leave given to commence an action for child sexual abuse

To extent necessary settlement agreement set aside

Category: B

Representation:

Counsel:

Applicant	:	Mr T J Hammond
Respondent	:	Ms A Liscia

Solicitors:

Applicant	:	Maurice Blackburn Lawyers
Respondent	:	Irdi Legal

Case(s) referred to in decision(s):

JAS v The Trustees of the Christian Brothers [2018] WADC 169

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 1 May 2020 and has subsequently been edited from the transcript.)

Introduction

I am dealing with an urgent application for leave to commence an action for damages for child sexual abuse pursuant to s 92(2) of the Limitation Act 2005 (WA) (the Act). Section 92 provides a procedure allowing a setting aside of a settlement agreement - which would otherwise prevent a claim for damages being made for personal injuries resulting from sexual abuse of a child.
Section 92 was inserted into the Act in 2018 by the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA) (the amending Act) in a first stage of legislative reform enacted in this State in response to the final report and recommendations following the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. These reforms remove some former obstacles against persons obtaining damages for past child sexual abuse.
The amending Act relaxed a previous regime of absolute/closed limitation periods once run, to the current position which is that no limitation period applies in respect of a child sexual abuse action. Further, the effect of s 91(1) of the Act is to permit commencement of a child sexual abuse action notwithstanding relief for this type of action would otherwise be barred by limitation prior to commencement of the amending Act.
Subsection 6A(1) of the Act now contains the following definitions:
(1)In this section -
child means a person under 18 years of age;
child sexual abuse, of a person, means an act or omission in relation to the person, when the person is a child, that is sexual abuse;
child sexual abuse action means an action on a child sexual abuse cause of action;
child sexual abuse cause of action means a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from the child…

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: [2020] WASC 188
Decision Date: 2 JUNE 2020

CaseChat Overview and Summary

The case involved an application by a woman, who will be referred to as ARA, against the Perth Diocesan Trustees. ARA sought to set aside a settlement agreement between herself and the Trustees, as well as to obtain leave to commence a legal action related to child sexual abuse that she had suffered at the hands of a Catholic priest. The application was brought before the Supreme Court of Western Australia. The primary legal question before the court was whether it was just and reasonable to set aside the settlement agreement and grant ARA leave to commence a new action. The court considered the nature of the settlement agreement, the reasons why ARA wanted to set it aside, and whether there were any substantial merits to her new cause of action.

The court examined the terms of the settlement agreement and the reasons ARA provided for seeking to set it aside. It also considered the principles of procedural fairness and the public interest in finality of judgments. The court found that while the settlement agreement was valid and binding, it was just and reasonable to set it aside in this instance. This was because ARA had not had independent legal advice at the time the agreement was made, and there were substantial merits to her new cause of action. The court emphasised that each case turns on its own facts and that this decision was not a blanket approval of setting aside settlement agreements in cases of child sexual abuse.

The court granted ARA leave to set aside the settlement agreement and to commence a new action against the Trustees. The court also made an order that the Trustees pay ARA's costs of the application. This decision provides some guidance to parties in similar situations, but it is important to note that each case will be determined on its own merits. The court's decision highlights the importance of ensuring that parties have independent legal advice when entering into a settlement agreement and the potential consequences of failing to do so.

Orders