Cherry v State of Victoria - [2025] VSC 603

IN THE SUPREME COURT OF VICTORIA

Not Restricted

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2022 03291

BETWEEN:

ANTHONY CHERRY	Plaintiff
v
THE STATE OF VICTORIA	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2025
DATE OF RULING:	23 September 2025
CASE MAY BE CITED AS:	Cherry v State of Victoria
MEDIUM NEUTRAL CITATION:	[2025] VSC 603

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LIMITATION OF ACTIONS – Limitation of Actions Act 1958 (Vic) ss 27QD, 27QE – Institutional abuse – Prior settlement deed – Application to set aside prior deed – Whether just and reasonable to set aside prior deed – Where plaintiff overcame a limitation of actions defence in prior proceeding – Whether any legal barriers impacted plaintiff’s decision to enter into the prior deed – Whether the law on vicarious liability impacted plaintiff’s decision to enter into the prior deed – Adequacy of the settlement sum and other risk factors – Adequacy of legal representation – Bargaining power of the parties and conduct of the defendant – Plaintiff’s mental health – Not just and reasonable to set aside prior deed – DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806 – New South Wales v Lepore (2003) 212 CLR 511 – Prince Alfred College Inc v ADC (2016) 258 CLR 134.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Willshire	Arnold Thomas & Becker
For the Defendant	Ms R Annesley KC with Ms M Cameron	Moray & Agnew

TABLE OF CONTENTS

Evidence

The prior deed

Background

The current pleadings
Mr Cherry’s prior proceeding

Witnesses

Mr Cherry
Mr Price

Legislation and applicable principles

Is it just and reasonable to set aside the prior deed?

Limitation of actions defence
Ellis defence
Legal barriers?
Mr Cherry’s submissions
Defendant’s submissions
Analysis

Adequacy of the settlement sum; other risk factors
Mr Cherry’s submissions
Defendant’s submissions
Analysis

Adequacy of legal representation; bargaining power and conduct of the defendant
Mr Cherry’s submissions
Defendant’s submissions
Analysis

Mr Cherry’s mental health; feelings of guilt and shame
Mr Cherry’s submissions
Defendant’s submissions
Analysis

Parties’ interests

Conclusion

HER HONOUR:

The plaintiff, Anthony Cherry, alleges he was sexually abused by schoolteacher Oswald Brian Sword (‘Sword’) while a student at Westall State Primary School (‘the School’). In this proceeding, he claims damages from the defendant, the State of Victoria. However, Mr Cherry had previously issued a proceeding concerning the abuse against the defendant in the County Court of Victoria (the ‘prior proceeding’). By a deed of release signed on 1 April 2003,[1] Mr Cherry released the defendant from claims relevant to the abuse (the ‘prior deed’). The defendant says the prior deed bars Mr Cherry from bringing the current proceeding and the proceeding should be struck out.
[1]The parties appear to agree that the prior deed was signed on 13 April 2003. However, based on the available documents and as will become evident from the chronology below, the prior deed was signed by Mr Cherry on 1 April 2003.
Mr Cherry applies to set…

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 603
Decision Date: 23 September 2025

CaseChat Overview and Summary

Cherry v State of Victoria involved a claim for damages arising from institutional abuse against the State of Victoria. The plaintiff sought to set aside a prior settlement deed, arguing it was not just and reasonable to enforce it. The case was heard in the Supreme Court of Victoria. The primary legal issues were whether it was just and reasonable to set aside the prior settlement deed, given the plaintiff had already overcome a limitation of actions defence in a prior proceeding, and whether any legal barriers, including the law on vicarious liability, impacted the plaintiff’s decision to enter into the prior deed.

The court examined several factors to determine if the prior settlement deed should be set aside. These factors included the adequacy of the settlement sum, other risk factors, the adequacy of legal representation, the bargaining power of the parties and conduct of the defendant, and the plaintiff's mental health. The court held that the plaintiff had overcome the limitation of actions defence in the prior proceeding and that there were no legal barriers that impacted the plaintiff’s decision to enter into the prior deed. The court also found that the law on vicarious liability did not influence the plaintiff’s decision. Furthermore, the court considered the adequacy of the settlement sum and other risk factors, the adequacy of legal representation, and the bargaining power of the parties and conduct of the defendant. Ultimately, the court found that it was not just and reasonable to set aside the prior deed, drawing on precedents such as DZY (a pseudonym) v Trustees of the Christian Brothers, New South Wales v Lepore, and Prince Alfred College Inc v ADC.

Consequently, the court dismissed the plaintiff’s application to set aside the prior settlement deed. The court’s decision was based on the comprehensive analysis of all relevant factors, ensuring a fair and just outcome in the context of the statutory framework and established legal principles.

Orders