ARA v The Perth Diocesan Trustees
[2020] WASC 188
•2 JUNE 2020
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 sexual abuse of the person.
In addition to the removal of time limitations against an action, the amending Act also affords to a court the discretion for the court to remove a second barrier to such a claimant - by setting aside a previous judgment or settlement agreement otherwise applicable to a previously resolved cause of action for such abuse.
Section 92 of the Act now reads:
92.Previously settled causes of action
(1)This section applies in relation to a proposed action on a previously settled cause of action and to the agreement effecting the settlement (the settlement agreement).
(2)Application may be made to a court that would have jurisdiction to deal with the action, but for the settlement agreement, for leave to commence the action.
(3)The court may, if satisfied that it is just and reasonable to do so -
(a)grant leave to commence the action, subject to conditions; and
(b)to the extent necessary for that, set aside the settlement agreement and any judgment giving effect to the settlement.
(4)If an action on the previously settled cause of action is commenced, the settlement agreement and each agreement relating to the settlement, other than a contract of insurance, is, despite any written or other law, void to the extent to which it relates to the child sexual abuse the subject of the cause of action.
(5)A party to an agreement that is wholly or partly void under subsection (4) cannot seek to recover an amount paid by or for the party under the agreement on the basis that the agreement is void to that extent.
(6)The court dealing with the action may, if satisfied that it is just and reasonable to do so, take into account any amount paid under an agreement that is wholly or partly void under this section, to the extent to which the amount relates to the child sexual abuse the subject of the cause of action.
(7)For the purposes of subsection (6), amounts paid under an agreement are taken to relate to the child sexual abuse the subject of the cause of action to the extent of 50% if the agreement -
(a)does not relate solely to that child sexual abuse; and
(b)does not expressly deal with the extent to which the agreement and amounts paid under it relate to that child sexual abuse.
As was helpfully summarised by former Chief Judge Sleight of the District Court in JAS v The Trustees of the Christian Brothers [2018] WADC 169 (JAS) at [8]:
The net effect of these provisions is that an application under s 92 must meet a number of criteria:
1.The applicant has entered into a settlement agreement;
2.The settlement agreement relates to a child sexual abuse cause of action;
3.That at the time the settlement agreement was entered into the child sexual abuse cause of action was statute barred;
4.The application is made to a court that would have jurisdiction to deal with such an action; and
5.The court is satisfied that it is 'just and reasonable' to:
i.Grant leave to commence a proposed cause of action on a previously settled cause of action; and
ii.To the extent necessary for that, set aside the settlement agreement and any judgment giving effect to the settlement.
Background
The present applicant who as I explain later is referred to anonymously as ARA, was born on 2 September 1939. He alleges he was sexually abused by persons for whom the respondent was ultimately responsible, between the ages of 13 and 14 years whilst under residential care.
The applicant is currently 80 years of age and in very poor health, suffering a terminal mesothelioma illness.
The applicant had been made a ward of the State of Western Australia at the age of four years. He resided at Swan Homes for about 11 years (from 1 March 1944 until 3 April 1955). Swan Homes had been run by the Church of England (now known as the Anglican Church of Australia).
Following his claims he had suffered child sexual abuse whilst under the supervision of employees of Swan Homes and also as a result of other maltreatment whilst in their care, the applicant has previously received two lump sum payments, one of which was formalised by a deed of settlement entered in 2017.
He also received an ex gratia payment of $45,000 from the State in 2010.
The applicant entered into a Deed of Settlement and Release with the respondent, The Perth Diocesan Trustees, on 6 April 2017 (the Deed). The applicant received $80,000 pursuant to the settlement arrangements the subject of that Deed.
At the time the applicant entered the Deed, he had been the subject of a limitation of action time bar, inhibiting on his remedy claim against the respondent.
The Deed contained the following provisions:
3.Payment of Settlement Sum
3.1The Releasor acknowledges and agrees that the payment of the Settlement Sum (less the payment to the Commonwealth under clause 3.1(a)) shall be satisfied by:
a)Payment of one hundred and fifty dollars ($150) to the Commonwealth pursuant to the Health and other Services (Compensation) Act 1995; and
b)Payment of seventy nine thousand eight hundred and fifty dollars ($79,850) to the Releasor, being the Settlement Sum after the Commonwealth payment is deducted pursuant to clause 3.1(a) above.
3.2The Releasor acknowledges and agrees that it is the responsibility of the Releasor to apply to Medicare or any other health insurance organisation for payments made by the PDT pursuant to clause 3.1(a) above in relation to the Claim.
4.Undertaking by Releasor
4.1The Releasor undertakes to pay or repay out of the Settlement Sum any amount which the PDT may be liable to pay or may hereafter become liable to pay pursuant to any legislation (other than the Health and Other Services (Compensation) Act 1995) and the Releasor agrees to indemnify the PDT and its Associates against liability to pay any such amount.
4.2Notwithstanding the provisions of clauses 2.2 and 5.1 if this Deed and/or the payment of the Settlement Sum is subsequently set aside or rendered void or ineffectual by any Commonwealth or State legislation which comes into effect after this Deed is entered into then the Parties acknowledge and agree that the Releasor's receipt of the Settlement Sum shall be taken into account in any subsequent Claim made by the Releasor with respect to the Releasor's Claim.
5.Release
5.1The Releasor hereby releases and forever discharges the PDT and its Associates from any Claim known or unknown, alleged to now exist or which may exist but for this Deed arising out of, or in connection with any matter whatsoever and howsoever arising, including in relation to or arising out of the Releasor's Claim and the Personal Injury which the Releasor alleges he suffered as a result of the Releasor's Claim.
6.Bar to Proceedings
6.1Except to enforce the terms of this Deed, the Releasor covenants with the PDT that he will not at any time hereafter being, continue or institute any Claim against the PDT and its Associates or any person or corporation liable to be made a defendant in respect of the subject matter of the Releasor's Claim arising out of or in connection with the Releasor's Claim
6.2This Deed may be pleaded in bar by any Party to any action, suit or proceeding by any other Party, present or future in connection with the Releasor's Claim.
Pursuant to s 92(2) of the Act, the applicant now seeks leave to set aside that past settlement agreement - the Deed, and then to commence an action against The Perth Diocesan Trustees in a court of this State with jurisdiction to determine such a claim - which, of course, would extend to this court, as well as the District Court of Western Australia.
The application
The applicant's Originating Motion, as filed in this court on 28 April 2020, reads as follows:
At the hearing below in the Supreme Court, the Applicant will apply, pursuant to section 92(2) of the Limitation Act 2005 (WA), for leave to commence a child sexual abuse action and for the following orders: That the time for service and hearing of this notice be abridged. The Applicant have leave to commence an action for damages for child sexual abuse against the Respondent, such action to be against the current office holders of the Respondent pursuant to s 15B of the Civil Liability Act 2002. The Deed of Settlement and Release entered into between the Applicant and the Respondent dated 6th April 2017 be set aside to the extent that such agreement would otherwise be a bar to the Applicants child sexual abuse cause of action. Such further or other order as to the Court may seem appropriate.
The application is supported by two affidavits: an affidavit sworn by the applicant's solicitor, Ms Gemma Louise Taylor of 23 April 2020, and an affidavit signed by the applicant on 23 April 2020 (albeit unwitnessed). Written submissions are also provided in support of the originating motion for leave to commence an action and to set aside the settlement agreement (the Deed).
By her affidavit, Ms Taylor attests to the circumstances of the applicant's verification and the signing of his affidavit. She explains that due to the nationwide constraints resulting from the current COVID-19 pandemic health crisis and the applicant's high risk health status, he was unable to get his affidavit witnessed in the usual manner. Ms Taylor requested that this requirement be dispensed with in what are wholly unique circumstances and I agreed that course was appropriate. The Deed is found attached to ARA's affidavit as RA‑1.
In light of the Supreme Court's updated COVID-19 Public Notice (dated 27 March 2020), the applicant had filed a Certificate of Urgency on 29 April 2020, on the basis that as at 3 April 2020, the applicant's life expectancy was then estimated to be only one to two months.
At an urgent directions hearing on Thursday, 30 April 2020, conducted by audio‑link, after hearing from respective counsel, I ordered that time be abridged for ARA's Originating Motion to be made returnable before me, immediately. I then adjourned the motion for a substantive hearing the following day, namely Friday, 1 May 2020. I further ordered then that the applicant's name be anonymised. Hence he was referred to from then as 'ARA'.
The respondent entered an unconditional appearance on 1 May 2020. Following what was obviously some very extensive and ultimately productive conferral, the parties then filed an agreed minute of proposed consent orders in advance of the hearing of ARA's application. The agreed minute of proposed orders dated 1 May 2020 (electronic document 10) was worded as follows:
1.The Applicant have leave to commence and action for damages for sexual abuse suffered at Swan Homes.
2.The Deed of Settlement and Release executed on or about 6 April 2017 and entered into between the Applicant and the Respondent be set aside to the extent such deed would otherwise be a bar to such a cause of action.
3.There be liberty to apply pursuant to section 92(3)(b) of the Limitation Act 2005 (WA) in relation to any other settlement agreement found to be in existence.
4.It is a condition of the leave granted in paragraph 1 of these Orders that such leave is not a bar to the Respondent making an application for any order in the child sexual abuse action pursuant to the reserved powers of the Court referred to in section 6A of the Limitation Act 2005 (WA).
5.The costs of and incidental to this application be in the cause of the child sexual abuse action to be commenced.
As is evident, the respondent does not oppose relief as is sought by ARA, seen above. Whilst that accord is a highly relevant consideration, the court still needs to be independently satisfied that the legislative requirements to sustain the present application are met. In the end, as I will explain, I was so satisfied.
I should note, for completeness, that although the applicant foreshadows bringing his action against the State as well as a further defendant, that leave to proceed against the State is not sought on the current application before me. Of course, there exists no relevant settlement agreement (as between the applicant and the State) to be set aside. There is therefore no obstacle to prevent the applicant from eventually commencing his foreshadowed action against the State, as an extra defendant.
Thus the application before me is confined to the relevant party, namely the only respondent to the present application, being The Perth Diocesan Trustees and who might otherwise rely on the Deed as a bar to future proceedings by ARA, regardless of whether there may or may not be any other potential tortfeasors.
Consideration and findings
I have had the benefit of reading all the submitted materials. I have also been provided with the reasons of Chief Judge Sleight in the matter of JAS. Those reasons set out the relevant legislation as well as the various considerations which, in that different case, saw him discuss the law and some relevant explanatory material surrounding it. In what are very urgent circumstances there is no need for me to repeat that exercise, albeit every case of personal injury and child sexual abuse claim must be necessarily different and bespokenly so evaluated on an application such as this. Here, one similarity to JAS already seen and of significant importance, is that the present application seeking leave and further relief is not opposed. But another key distinguishing feature is the unfortunate terminal and short term adverse health outlook that I have been advised about towards the health of the applicant, ARA, as regards the grant of the leave now urgently sought.
I refer to [8] ‑ [15] above and the criteria as identified by Chief Judge Sleight in JAS at [7]. I agree that the substantive question for me to consider and evaluate is whether it is 'just and reasonable' to grant leave to commence the action and to set aside the relevant Deed.
Towards a relevant court's afforded discretion under s 92(3) of the Act, the legislation does not elaborate on this aspect of the court's power to set aside either a settlement agreement, or a judgment that follows and implements such a settlement agreement. For present circumstances there is only the settlement agreement (the Deed) and no relevant judgment.
The key question to be considered regarding the present application to set aside the Deed (which I have read and which, on its face by its terminology, in expression and implementation, could pose an operative restraint and bar against a future viable child sexual abuse cause of action which ARA wishes to pursue against the respondent), is whether that step, in all the prevailing circumstances, is a just and reasonable step?
For present circumstances I am persuaded that it is just and reasonable for leave as is sought to be granted. That is the just and reasonable course as it will allow ARA to pursue litigation against the respondent in an environment where he will hold the right to obtain relief upon the true merits of his claim - but this time with no expired limitation of action considerations in the background and possibly bearing negatively upon him. That is a course consistent with the remedial policy of those changes to the Act. A grant of leave of course does not mean that that ARA is guaranteed success in his future action. But he will hold what he has not held in the past - a fair go.
In that future litigation to present his case unconstrained by any background pressure from expired limitation of action considerations and barring obstacles from a past settlement, ie, the Deed.
It must be realised in this present exercise that at the time that the Deed was entered into in April 2017, and reflected in the terms seen therein, the position as a matter of law, in terms of a limitation of action then applicable for tortious conduct in the nature of child sexual abuse, was then the subject of a fully run and otherwise absolute limitation bar, applicable to ARA's capacity to obtain relief upon that cause of action for child sexual abuse.
The remedial effect of the amendments only came after the Deed. They were only introduced in 2018. They are seen reflected in s 6A of the Act and provisions such as s 92. Indeed, s 91 of the Act removed limitation periods in respect of such tortious conduct, so that there was henceforth to be no longer a constraint against the sufferer of such abuse being inhibited by the lack of a viable opportunity to obtain substantive relief from a relevant court.
The remedial amendments as reflected in the changes to the Act explicitly envisage situations where, by reason of a settlement agreement or a judgment that had been perfected prior to the remedial amendments in 2018, that position could still be addressed and relieved against by the reach of the changes to the present limitation of action regime.
And the basis on which the legislative concern would be addressed would be to give the court the discretion, on a very wide basis, to effectively do justice and to enable a settlement agreement or, indeed, a judgment to be removed as an obstacle. That would allow the full ambit of a tortious cause of action, saying nothing about its ultimate merits or demerits, to be ventilated without the limitation of action constraint. The constraint would be removed either in terms of future litigation to an outcome at a future trial, or by perfection of a further settlement agreement that might be achieved, without any hovering sword in the background from an engaged limitation of action provision being called upon.
It is important to draw attention to the unique character of the circumstances of ARA's present application, under which these prima facie observations are rendered urgently and on an ex tempore basis. I would not wish for the present observations to potentially inhibit a respondent in any future case, under very different circumstances, say, with less compelling urgency, from raising an issue as to leave by reason of forensic prejudice, as regards a future pursuit of longstanding historic tortious conduct suffered many, many years ago.
However, these parties have put a common position about the issue of possible forensic prejudice to the respondent under such a trial, as effectively, being preserved to the case manager of the applicant's future action. That is reflected under the orders that have been consensually presented to me today. On that basis, such forensic prejudice issues, if they emerge, are effectively, for present circumstances, isolated for the future.
In the end I am satisfied that here, for present urgent and looming terminal circumstances for ARA, that what is proposed and agreed to is not an inappropriate course to take. However, as I have said, I do not close off the possible relevance of such forensic prejudice considerations at this stage under potentially very different facts within a first-level evaluation towards leave, in different circumstances. Nothing I say within these reasons is meant to bear upon that issue under future applications.
Orders
Following discussion with the parties as some aspects of the wording of the agreed orders, and by implementing some amendments to ensure clarity, and with the benefit of counsel's considerable assistance, I have issued the following orders:
1.The applicant is hereby given leave, pursuant to section 92(3) of the Limitation Act 2005 (WA), to commence an action for damages against the respondent for child sexual abuse allegedly suffered by him at Swan Homes.
2.Pursuant to section 92(3)(b) of the Limitation Act 2005 (WA), the deed of settlement and release executed on or about 6 April 2017, and entered into between the applicant and respondent, is hereby set aside to the extent such deed would otherwise be a bar to ARA's pursuing of his causes of action under paragraph 1 of these orders.
3.There is liberty to apply, reserved to ARA, pursuant to section 92(3)(b) of the Limitation Act 2005 (WA) in relation to any other settlement agreement found to be in existence bearing upon ARA's causes of action for damages under paragraph 1 above.
4.Pursuant to section 92(3)(a) of the Limitation Act 2005 (WA), it is a condition of the leave granted under paragraph 1 of these Orders that such grant of leave is not to be argued or evaluated by any court as any bar to the merits of the respondent's potential future application seeking relief by way of orders in a child sexual abuse action that is commenced by ARA pursuant to the reserved powers of the court referred to in section 6A of the Limitation Act 2005 (WA).
5.The costs of and incidental to this application shall stand to be in the cause of any future child sexual abuse action commenced by ARA in a Western Australian Court with jurisdiction and pursuing the cause of action identified in paragraph 1 above of these orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Orderly to Justice Kenneth Martin2 JUNE 2020
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