EXV v Uniting Church in Australia Property Trust (NSW)

[2024] NSWSC 490

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490

Hearing dates:

01 – 03 May 2023
14 July 2023

Date of orders:

02 May 2024

Decision date:

02 May 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1) The plaintiff’s Notice of Motion is dismissed.

(2) The plaintiff is to pay the defendant’s costs of the motion.

(3) Proceedings number 2022/00165865 are dismissed.

(4) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement to some other costs order.

(5) Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.

Catchwords:

CONTRACTS – Application to set aside deed of settlement under Pt 1C of the Civil Liability Act 2002 (NSW) – Where plaintiff previously entered into deed of settlement in relation to historical sexual abuse claim – Where parties agree that the deed of settlement is an affected agreement – Whether it is just and reasonable to set aside deed of settlement – Where plaintiff was advised not to settle his claim – Where legal barriers were not material to plaintiff’s decision to settle his claim

STAUTORY INTERPRETATION – Legislative purpose – Remedial legislation – Extrinsic materials – Second reading speeches – Retrospective legislative amendment removing barriers to child abuse claims – Determining purpose and effect of legislative amendments – Consideration of similar legislation in other jurisdictions – Whether it is just and reasonable to set aside deed of settlement – Whether requirement to certify reasonable prospects of success under s 347 of the Legal Profession Act 2004 (NSW) is a legal barrier under Pt 1C of the Civil Liability Act 2002 (NSW)

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), Ch 8A, Pt 8A.3, s 114I

Civil Liability Act 1936 (SA), Pts 7A, 7B

Civil Liability Act 2002 (NSW), Pts 1B, 1C, ss 6F, 6H, 7A, 7B, 7C, 7D, 7E, 7F

Civil Liability Act 2002 (Tas), Pt 10C

Civil Liability Act 2002 (WA), Pt 2A

Civil Liability Act 2003 (Qld), Pt 2A

Civil Liability Amendment (Child Abuse) Bill 2021 (NSW)

Civil Procedure Act2005 (NSW), Pt 4, s 64

Criminal Procedure Act 1986 (NSW), s 294

Evidence Act 1995 (NSW), ss 63, 67, 192

Evidence Regulation 2020 (NSW), reg 4

Interpretation Act 1987 (NSW), ss 33, 34

Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic)

Legal Profession Act 2004 (NSW), s 347

Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 cl 4

Limitation Act 1969 (NSW), ss 6A, 11, 18A, 52, 60C, 60E

Limitation Act 1974 (Tas), ss 5B, 5C

Limitation Act 1981 (NT), ss 5A, 53, 55

Limitation Act 1985 (ACT), s 21C

Limitation Act 2005 (WA), ss 6A, 91, 92

Limitation of Actions Act 1936 (SA), s 3A

Limitation of Actions Act 1958 (Vic), Pt IIA Div 5, s 27P

Limitation of Actions Act 1974 (Qld), ss 11A, 48

Personal Injuries (Liabilities and Damages) Act 2003 (NT), Pt 3A

Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 28.2, 31.5, 33.4, 35.2

Wrongs Act 1958 (Vic), Pt XIII

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

DZY (a pseudonym) v Trustees of the Christian Brothers [2023] VSC 124

Gary Pearce v The Corporation of the Society of the Missionaries of the Sacred Heart [2022] VSC 697

Gett v Tabet (2009) 109 NSWLR 1

JAS v Trustees of the Christian Brothers (2018) 96 SR (WA) 77; [2018] WADC 169

Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at 509; [2013] HCA 35

Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50

Re Credit Tribunal; Ex parte General Motors Acceptance Corp, Australia (1977) 137 CLR 545; (1977) 14 ALR 257

Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234 at 264; [2020] VSCA 328

Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204

TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440; [2020] QCA 190

TRG v The Board of Trustees of the Brisbane Grammar School [2021] HCATrans 92

Trustees of the Roman Catholic Church for the Archdioceses of Sydney v Ellis (2007) 63 ACSR 346; [2007] NSWCA 117

Wacando v Commonwealth (1981) 148 CLR 1; (1981) 37 ALR 317; (1981) 56 ALJR 16; [1981] HCA 60

Walsh (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2024] ACTSC 81

WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639

WPM v Trustees of the Christian Brothers [2020] WADC 112

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 March 2021

Category:

Procedural rulings

Parties:

EXV (Plaintiff)
The Uniting Church in Australia Property Trust (NSW) (Defendant)

Representation:

SE McCarthy and JB Masur (Plaintiff)
L Gyles SC and H Chiu (Defendant)

Solicitors:
Koffels Solicitors & Barristers (Plaintiff)
Colin Biggers & Paisley Lawyers (Defendant)

File Number(s):

2022/165865

Publication restriction:

Non-publication order in respect of the name of the plaintiff or any information that may lead to their identification.

JUDGMENT

Introduction

1. This judgment is believed to be the first time that the Court has had the opportunity to consider Pt 1C of the Civil Liability Act 2002 (NSW) (CLA) which commenced on 18 November 2021. Section 7D of the CLA, found within “Part 1C Child abuse – setting aside settlements”, permits a court to set aside an “affected agreement” if it is “just and reasonable” to do so.

2. In 2007 and 2008, EXV pursued an unlitigated claim against Knox Grammar School (Knox) based on an allegation of one instance of child sexual abuse perpetrated against him by Mr Adrian Nisbett in 2002 (the 2007 Claim). At the time of the alleged abuse, Mr Nisbett was a teacher at Knox and the plaintiff was a student. At the relevant time, the Synod of the Uniting Church in Australia Property Trust (NSW) operated Knox.

3. The 2007 Claim was mediated on 18 December 2008 (the Mediation). As a result, the plaintiff agreed to accept the sum of $115,000 inclusive of costs in full and final satisfaction of the 2007 Claim, which left him with approximately $83,000 after the payment of costs and disbursements. A Deed of Agreement was executed by the parties (being the plaintiff and the defendant in these proceedings, the Uniting Church in Australia Property Trust (NSW)) on 19 December 2008 by which the plaintiff released the defendant from liability for any further claims relating to the plaintiff’s allegations against Mr Nisbett (the Settlement Deed). The release reads as follows:-

4.1   Upon receipt and in consideration for the Respondent’s payment of the settlement amount, the Claimant irrevocably releases and discharges the Respondent, the School and/or the Board from all demands, claims, causes of action and/or suits arising out of or in connection with the subject matter of this Agreement whatsoever in law, in equity and/or under any statute that the Claimant has or may have had against the Respondent, the School and/or the Board in respect of any damage, loss or expense that the Claimant has suffered or incurred or may suffer or incur in the future.

4.2   This Agreement may be pleaded as a bar to any demand, claim, cause of action and/or suit of the kind described at 3.1 of this Agreement.

4. The plaintiff’s then solicitors were sent a settlement cheque in the amount of $115,000 on 27 February 2009.

5. By way of a Statement of Claim filed on 8 June 2022, the plaintiff brought a new claim against the defendant, based on the same allegations that were the subject of the 2007 Claim, alleging that the defendant is directly liable in negligence or vicariously liable for the intentional torts committed against the plaintiff by Mr Nisbett in 2002 (the 2022 Claim).

6. In its Defence filed on 27 July 2022, the defendant pleads the Settlement Deed as a complete answer to the 2022 Claim, and says that it irrevocably released and discharged the defendant from all claims and/or suits arising out of, or in connection with, the alleged sexual abuse perpetrated upon the plaintiff by Mr Nisbett, so that the 2022 Claim cannot be maintained.

7. On 25 August 2022, the plaintiff filed a Notice of Motion seeking an order pursuant to s 7D of the CLA that the Settlement Deed be set aside and, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 64 of the Civil Procedure Act2005 (NSW) (CPA), that the part of the defendant’s Defence which relies upon the Settlement Deed be struck out.

8. On 23 November 2022 the defendant filed a Notice of Motion seeking an order, pursuant to r 28.2 of the UCPR, that the questions of whether the Settlement Deed operates as a complete bar to these proceedings and whether or not it ought to be set aside, be decided as separate questions in advance of all other questions in the proceedings. It was agreed between the parties that if I found for the plaintiff on his motion, the effect of both motions would be that I would strike out the part of the Defence in which the defendant relied upon the Settlement Deed. If I found for the defendant, it was agreed that the proceedings would be entirely dismissed.

9. Both motions agitated the same question, approached from different vantage points, and were heard together over four days. For the following reasons, I decline to make an order setting aside the Settlement Deed or striking out that part of the Defence relying upon it. The practical effect of my orders is that the plaintiff’s case cannot proceed, as he is bound by the terms of the Settlement Deed executed in December 2008. The 2022 Claim is therefore dismissed.

The factual background

10. The plaintiff was born in 1986 and attended Knox from 1999 to 2002.

11. Mr Nisbett was a teacher first employed by Knox in 1971. He was a boarding housemaster between 1978 and 1986, and by 1992 he was a senior teacher at the school. Between 1999 and 2004, he was the Director of Students. In this role, one of his responsibilities was to be a primary contact for reports of child sexual abuse by staff members.

12. The plaintiff alleges that Mr Nisbett took an interest in him during his first year at Knox and would interact with him monthly. Mr Nisbett would ask the plaintiff about his life and his troubles and offer him advice and assistance. The plaintiff alleges that this “counselling” occurred so frequently that it was noticed by his friends who would tease him about Mr Nisbett’s attentions, and who would call Mr Nisbett a “paedophile”. The plaintiff says that, while he did not understand it at the time, Mr Nisbett’s actions were part of a process of “grooming” him, as that term is now understood.

13. Toward the end of October 2002, the plaintiff decided to leave Knox and finish his schooling at a public high school.

The alleged abuse

14. On or about 26 November 2002, when the plaintiff was 16 years of age, the plaintiff alleges that he had a “counselling” session with Mr Nisbett in his office. Mr Nisbett then suggested that he take the plaintiff on an outing. The plaintiff alleges that he did not feel comfortable about going, but his mother insisted that he do so out of politeness.

15. The plaintiff apparently expected Mr Nisbett to take him to a restaurant, but Mr Nisbett took the plaintiff to his home, and he told the plaintiff that during the week, most restaurants were closed. Whilst they were at his home, Mr Nisbett spoke with another student on the phone. He then asked the plaintiff about his relationship with his father. Mr Nisbett was apparently aware that the plaintiff’s parents were separated and that this was a sensitive topic for the plaintiff. Mr Nisbett then offered the plaintiff a beer and a cigarette. After the plaintiff drank a beer, Mr Nisbett offered him another one.

16. Mr Nisbett and the plaintiff were sitting on the couch. Mr Nisbett suddenly placed his hand on, and then inside, the plaintiff’s trousers. The plaintiff said that he felt shocked and frightened. Mr Nisbett then opened the plaintiff’s trousers and proceeded to suck on his penis. Mr Nisbett asked the plaintiff if he would do the same to him, but the plaintiff refused. Mr Nisbett then drove the plaintiff home and told him not to tell his mother about what had occurred.

17. The plaintiff changed schools in 2003 and never returned to Knox. He disclosed the abuse to his parents approximately midway through that year.

18. After the alleged abuse, the plaintiff says that his mood and behaviour changed rapidly. He allegedly became withdrawn and began to struggle at school. During his last year of school, he says that he achieved a disappointing result, far below his actual capabilities. He began to drink alcohol and use illicit drugs. The plaintiff said that for many years after the abuse, he experienced difficulties in forming relationships and retaining a job.

19. The plaintiff says that he continues to experience feelings of guilt, shame and embarrassment about what occurred. He says that while he has now managed to find gainful employment and has commenced a relationship, he still feels vulnerable and believes that he is limited in what he will ultimately be able to achieve in his life, which he attributes to the abuse perpetrated by Mr Nisbett in 2002.

Knox’s response to the allegations

20. In 2003 the plaintiff’s parents contacted Knox and spoke with Mr Peter Crawley, who was the headmaster of Knox between 1999 and 2003. Mr Crawley appointed an investigator, Mr Grahame Wilson, to investigate the plaintiff’s allegations against Mr Nisbett. The investigation was undertaken under the NSW Ombudsman’s supervision and Knox also sought advice from the Association of Independent Schools (AIS).

21. As part of his investigation, Mr Wilson interviewed Mr Stuart Pearson, who had apparently investigated Mr Nisbett in 1986. Mr Pearson had apparently provided a report to the then headmaster of Knox, Dr Ian Paterson, as a result of a former Knox student informing Mr Pearson that he had been touched inappropriately in the photography darkroom by Mr Nisbett when he was in year 11 or 12. Mr Pearson was employed as the General Duties Master at Knox between 1982 and 1990. Dr Paterson was headmaster from 1969 to 1998.

22. Mr Pearson told Mr Wilson that he had concerns about Mr Nisbett’s behaviour at the time of his investigation. He had heard rumours about numerous incidents over several years and came to believe that Mr Nisbett had engaged in a pattern of inappropriate behaviour. In particular, Mr Pearson believed that Mr Nisbett favoured boys who he thought were good looking and athletic. Mr Nisbett allegedly had long and intense conversations with them in his room, the staff room, the boarding house and at or around the school. Mr Pearson had heard that Mr Nisbett would show students pornography, invite them to his residence and offer them alcohol and cigarettes. He also had heard allegations of inappropriate touching, but Mr Pearson told Mr Wilson that these allegations had come from third parties and not from the alleged victims themselves.

23. In December 2003, Mr Wilson concluded that Mr Nisbett’s conduct required disciplinary action. Mr Wilson was aware that Mr Nisbett had taken EXV to his home, but was unaware of the alleged unlawful touching of EXV. Mr Nisbett was given a warning by Mr Crawley and the NSW Ombudsman was informed. The NSW Ombudsman approved of Knox’s course of action.

24. In 2004, Mr Crawley was replaced by Mr John Weeks as headmaster. Mr Weeks became aware of Mr Wilson’s investigation on the first day of his tenure and was concerned that it was insufficient. He requested Mr Wilson to prepare two further reports in relation to Mr Nisbett. In those reports, two allegations of inappropriate touching by Mr Nisbett were sustained. As a result, Mr Weeks stood Mr Nisbett down from teaching duties. The NSW Ombudsman was notified and required no further action. In June 2004, Mr Nisbett took long service leave and never returned to teaching.

Mr Nisbett’s arrest

25. On 24 February 2009 Mr Nisbett was arrested. On 15 October 2010 he pleaded guilty to two counts of sexual assault. Neither of those counts related to the incident alleged by the plaintiff.

Royal Commission Case Study

26. The plaintiff tendered, annexed to an affidavit, the findings of a Report of Case Study No. 23 of the Royal Commission into Institutional Reponses to Child Sexual Abuse (the Royal Commission) concerning the response of Knox Grammar School and the Uniting Church in Australia to allegations of child sexual abuse at Knox Grammar School in Wahroonga, New South Wales dated June 2016 (the Case Study). The Case Study reveals that there had been allegations concerning Mr Nisbett’s inappropriate behaviour during the time that Dr Paterson was headmaster at Knox, including those contained in Mr Pearson’s 1986 report. In response to that report, in 1986, Dr Paterson removed Mr Nisbett from his role as housemaster at a boarding house but took no other action. Dr Paterson apparently kept a copy of Mr Pearson’s report, but it has never been located. In 1990, Dr Paterson permitted Mr Nisbett to return to occupy a residence near a new boarding house, and to fill the role of housemaster from time to time.

The 2007 Claim

27. In late 2006 or early 2007, the plaintiff or his father approached a solicitor in Grafton, Mr Christopher Wheelahan, with respect to a possible claim against Mr Nisbett and Knox. Mr Wheelahan briefed a barrister, Mr Christopher Twomey. In due course, Knox was represented by Gadens Lawyers (Gadens).

28. On 14 December 2007, a settlement conference occurred between the parties in Mr Twomey’s chambers in Sydney (the Settlement Conference). No resolution was reached. However, the 2007 Claim was settled after the Mediation on 18 December 2008. The date of the Settlement Deed is 18 December 2008, although the plaintiff’s recollection was that the Settlement Deed was signed on the following day, 19 December 2008. Nothing turns on this. Although there was some inconsistency in the plaintiff’s evidence (to which see below), I accept that the plaintiff signed the Settlement Deed against the advice of his solicitor and his barrister. Ms Wendy Blacker of Gadens signed the Settlement Deed on behalf of the current defendant, rather than Knox.

29. On the plaintiff’s case, the sum for which he settled in 2008 was very low compared to the full compensation he would have been awarded for the harm that he suffered, assuming his success on liability issues. His case is that he accepted the offer put at Mediation because he faced three legal barriers which prevented him from pursuing the 2007 Claim and from being fully compensated. These legal barriers were:-

1. an expired limitation period;

2. an “Ellis” defence being available to the defendant (being a reference to a defence then available that the proposed defendant was an unincorporated association): see Trustees of the Roman Catholic Church for the Archdioceses of Sydney v Ellis (2007) 63 ACSR 346; [2007] NSWCA 117 (Ellis); and

3. that the plaintiff’s lawyers could not certify that his negligence claim had reasonable prospects of success pursuant to s 347 of the Legal Profession Act 2004 (NSW) (LPA), and therefore proceedings could not be commenced at the time of the execution of the Settlement Deed.

30. The limitation period for a claim to be brought by the plaintiff for any alleged negligence on the part of Knox was then governed by s 18A of the Limitation Act 1969 (NSW) (Limitation Act), which provided that a claim founded in negligence for damages for personal injury was not maintainable unless it was brought within three years from when the cause of action accrued to the plaintiff. The cause of action accrued on the date of the alleged abuse, ie on 26 November 2002. However, because the plaintiff was a minor at the time of the alleged abuse, time did not start running until he reached his 18^th birthday: ss 52 and 11(3)(a) of the Limitation Act. Thus, pursuant to the law at the time, the limitation period for the plaintiff’s claim in negligence expired on 15 January 2007. He was thereafter out of time to bring the claim in negligence for damages for personal injury during his negotiations with Knox in 2007 and 2008. However, ss 60C and 60E of the Limitation Act provided a procedure for a five year (maximum) extension of the three year limitation period for personal injury cases, applying to causes of action that accrued on or after 1 September 1990. It should be noted that it was an agreed position that s 14 of the Limitation Act provided that the plaintiff’s claim in vicarious liability against Knox for the alleged assault by Mr Nisbett expired six years after his eighteenth birthday, ie on 15 January 2010. The limitation period had not expired at the date of the Mediation.

30. Several communications between the parties in 2007 and 2008 concerning the limitation period were tendered. Ms Blacker sent a letter dated 31 March 2008 to Mr Wheelahan (the March Letter). It was marked “without prejudice” and stated the following:-

“We refer to your letter dated 17 December 2007.

We confirm our current instructions, as indicated to you during the settlement conference on 14 December 2007 that our client does not propose to raise the expiry of the statutory limitation period as a defence in the event that the plaintiff commenced a proceeding against our client outside the statutory limitation period.

We will inform you if we anticipate those instructions changing or if the instructions change.”

(Emphasis in original)

32. The March Letter was of some significance in these proceedings. I return to it below.

33. In December 2006, the NSW Court of Appeal heard argument in the Ellis case. The Court upheld the Diocese’s argument that it could not (at common law) sue or be sued in its own name because, among other reasons, it did not exist as a juridical entity (at [47]). The judgment, handed down on 24 May 2007, gave rise to what is known as the Ellis defence. Special leave to appeal was refused by the High Court on 16 November 2007. The plaintiff submitted that the Ellis defence was available to the defendant as an answer to the 2007 Claim.

34. Further, the plaintiff claims that he lacked evidence to prove that Knox had been negligent in November 2002. In 2008, as is the case now, prior to commencing proceedings, a solicitor had to certify that a claim brought by a plaintiff had reasonable prospects of success: see s 347 of the LPA (now Sch 2 cl 4(2) of the Legal Profession Uniform Law Application Act 2014 (NSW)).

35. Section 347 of the LPA then provided:-

347   Restrictions on commencing proceedings without reasonable prospects of success

(1)  The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice.

(2)  A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(3)  Court documentation on a claim or defence of a claim for damages, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.

(4)  In this section:

court documentation means:

(a)  an originating process (including for example, a statement of claim, summons or cross-claim), defence or further pleading, or

(b)  an amended originating process, defence or further pleading, or

(c)  a document amending an originating process, defence or further pleading, or

(d)  any other document of a kind prescribed by the regulations.

cross-claim includes counter-claim and cross-action.

36. Mr Wheelahan gave evidence at the hearing that in December 2008 he believed that the plaintiff had a good cause of action against Mr Nisbett personally, but that the claim would not be worth pursuing as he had determined that Mr Nisbett did not possess any real property. Without any evidence as to Knox’s knowledge about Mr Nisbett which should have put them on notice about his proclivities, Mr Wheelahan said that in December 2008, he could not certify that the plaintiff had reasonable prospects as against Knox in negligence pursuant to s 347 of the LPA. In the plaintiff’s submission, that Mr Wheelahan (and Mr Twomey) believed that they could not satisfy the certification requirement ought to be considered a legal barrier for the purposes of Pt 1C of the CLA (to which see below).

37. On 13 August 2018, Knox wrote to the plaintiff offering him an ex-gratia payment to “top up” the previous settlement. It was said to “also acknowledge the legal barriers facing some survivors such as the limitation period, difficulties accessing documents and plaintiff legal costs”. On 18 December 2018, Knox sent the plaintiff a cheque for $52,000. The plaintiff has never cashed this cheque.

The current proceedings

38. The plaintiff alleges in the 2022 Statement of Claim that the defendant is vicariously liable for the sexual abuse by Mr Nisbett. In particular, at paragraph 30, the plaintiff alleges that:-

1. Mr Nisbett was an employee and/or an agent of the defendant, holding the position of ‘Director of Students’;

2. The tortious conduct of Mr Nisbett occurred within the course of his employment and/or service for the defendant;

3. The opportunity to abuse the plaintiff was provided by the defendant who knew that Mr Nisbett would enjoy intimate access to the plaintiff;

4. The defendant invested and placed Mr Nisbett in a position of authority, power, trust and intimacy vis-a-vis the plaintiff who was vulnerable to the abuse of such authority, power, trust and intimacy;

5. Mr Nisbett relied upon and exploited the relationship of authority, power, trust and intimacy which the defendant invested in him, to physically and sexually abuse the plaintiff at the school;

6. The tortious conduct of Mr Nisbett occurred while he was performing his duties in the furtherance of the defendant’s interests, such duties permitted Mr Nisbett to:

1. Understand the family backgrounds and circumstances of students;

2. Provide counselling and support on a one-to-one basis;

3. Provide pastoral care to students;

4. Oversee the work of the year coordinator;

5. Be the first port of call for parents with concerns;

6. Manage students’ welfare on a one-to one basis;

7. Supervise, lead and control students on a one-to-one basis;

8. Interact with students’ parents as a representative of the school, including to enhance their trust in the school and its staff;

9. Engage with students to perform the above tasks outside of school hours and/or off school grounds;

10. Engage in most facets of student life at the school.

7. In the premises pleaded at paragraphs 30 (a) – (f) above, the defendant Mr Nisbett occupied a special relationship vis-à-vis the plaintiff.

39. Further, the plaintiff alleges at paragraph 42 that the defendant owed him a non-delegable duty of care and breached that duty by failing to take reasonable precautions such as:-

1. Terminating Mr Nisbett's employment at the school prior to the Plaintiff attending it, by no later than in 1984, or alternatively 1986, or alternatively 1996.

2. Reporting Mr Nisbett to police by no later than in 1984, or alternatively 1986, or alternatively 1996.

3. Terminating the employment of, and reporting to police, all teachers at the school against whom credible allegations of child abuse came to the attention of the headmaster.

4. Properly investigating all complaints of sexual abuse by any employee or agent of the defendant, and thereafter applying a sanction befitting the findings of such investigation.

5. Appointing a child protection officer or other arm's-length, qualified person to investigate allegations of sexual abuse, made directly to Paterson or Crawley prior to the plaintiff being abused.

6. Ensuring that a culture of tolerance and/or promotion of child sexual abuse was not maintained or permitted at the school, prior to the Plaintiff's attendance there.

7. Ensuring that a culture of tolerance and/or promotion of child sexual abuse was not maintained or permitted at the school, prior to the Plaintiff's attendance there, given that such a culture informed child sex abusers, including Mr Nisbett that he could engage in the sexual abuse of children with impunity.

8. Engaging with Mr Paterson and Mr Crawley at least twice annually, sufficient to appreciate whether any allegations of sexual abuse or serious misconduct had occurred in relation to any teacher and assessing the adequacy of the response of each to such allegations.

9. Not appointing Mr Nisbett, a person with a history of multiple and serious allegations of sexual abuse relating to him, to the position of student director.

10. Directing Mr Nisbett that he was not to engage with students absent the presence of another adult, and that should such a directive be disobeyed employment would be immediately terminated.

11. Instituting and maintaining an adequate system of child protection within the school.

12. Instituting and maintaining an adequate system for reporting childhood sexual abuse.

13. Putting in place a system by which students could contact any responsible officer of the defendant to report the sexual and physical abuse suffered whilst at the school.

14. Actively creating an atmosphere in which students did not feel threatened or intimidated to discuss and report unacceptable behaviour from any employees of the defendant.

15. Putting in place a system by which a student, suffering abuse, could bring such abuse to the attention of an independent person.

16. Putting in place a code of conduct which governed staff behaviour towards, and relationships with, students prohibiting teachers engaging one-to-one with students outside school and/or off campus.

17. Observing and assessing staff in their interactions with students, both informally and formally, thereby identifying teachers engaging in unprofessional and/or overly familiar relationships with students.

18. Prohibiting Mr Nisbett from inviting boys into his private apartment, such permission contributing to the impunity that led Nisbett to abuse the plaintiff.

19. Observing and/or restraining Mr Nisbett from engaging in patent grooming behaviour over many years.

20. Recognising the unconventional and unorthodox close relationship that Nisbett had formed with many boys, including the plaintiff.

21. Restraining Mr Nisbett from taking hundreds of photographs of young boys playing sport.

22. In the premises pleaded at (u) above, recognising that Mr Nisbett's prolific photography of a single subject (young boys wearing sports uniforms or partially clothed) as being obvious and recognisable evidence of Mr Nisbett's sexual attraction to young boys.

23. Keeping proper records of allegations of sexual abuse so as to monitor reporting trends and to act accordingly.

24. Effecting a proper handover (including knowledge and records pertaining to sexual abuse) from Paterson to Crawley.

40. The plaintiff alleges that he suffered psychiatric harm that was caused by the defendant’s breach of duty and/or vicarious liability. He particularises the injuries he suffered as:-

1. Chronic/complex post-traumatic stress disorder;

2. Major depression;

3. Substance misuse disorder;

4. Social anxiety disorder; and

5. Psychiatric sequelae.

41. The plaintiff claims damages for non-economic loss and/or general damages, future treatment expenses and past and future economic loss (including loss of superannuation). He also claims exemplary and aggravated damages.

42. In its Defence, the defendant:-

1. Admits that between 1999 and 2002 Knox comprised the property of the Uniting Church in Australia Property Trust (NSW);

2. Does not admit that the plaintiff was sexually abused by Mr Nisbett;

3. Denies that it is vicariously liable for Mr Nisbett’s tortious conduct;

4. Admits that it owed a non-delegable duty to the plaintiff but does not admit the content of that duty;

5. Says that, if sexual abuse did take place, such conduct did not take place under the authority or with the knowledge or consent of the Headmaster or the School Council, was not part of any role which Mr Nisbett had at the School, took place outside of the School’s premises and was otherwise an illegal act for which the defendant is not legally responsible, or liable;

6. Denies that it was negligent; and

7. Relies on the Settlement Deed as a complete answer to the plaintiff’s claim.

The legislative background

43. I set out Pt 1C of the CLA in full:-

7A Definitions

In this Part—

affected agreement—see section 7C.

applicant—see section 7D.

7B Object of Part

The object of this Part is to provide a way for a person to seek to have an agreement set aside if—

(a)    the agreement settled a claim for child abuse perpetrated against the person, and

(b)    at the time of the agreement, there were certain legal barriers to the person being fully compensated through a legal cause of action.

7C Meaning of “affected agreement”

(1) In this Part, an affected agreement means an agreement that prevents the exercise of an action on a cause of action to which section 6A of the Limitation Act 1969 applies, if the agreement occurred—

(a)   before the commencement of that section, and at the time of the agreement, a limitation period applying to the cause of action had expired, or

(b) before the commencement of Part 1B of this Act, and at the time of the agreement, an organisation, that would have been liable under Part 1B for child abuse had the Part been in force, was not incorporated, or

(c) before the commencement of Part 1B of this Act, and the agreement is not just and reasonable in the circumstances.

(2)   For the purposes of this section, a limitation period is taken to have expired even if it were possible at the time to seek the leave of a court to extend the period.

7D Court may set aside affected agreement

(1)   A person (the applicant) who, because of an affected agreement, is prevented from exercising an action on a cause of action may—

(a)   commence proceedings on the cause of action in a court with sufficient jurisdiction to hear the cause of action, and

(b)   apply to the court to set aside the affected agreement.

(2)   The court may set aside an affected agreement if it is just and reasonable to do so.

(3)   The court may consider the following in making its decision to set aside the affected agreement—

(a)   the amount paid to the applicant under the agreement,

(b)   the bargaining position of the parties to the agreement,

(c)   the conduct in relation to the agreement of—

(i)   the parties other than the applicant, or

(ii)   the legal representatives of the parties other than the applicant,

(d)   any other matter the court considers relevant.

(4) Section 131(1) of the Evidence Act 1995 does not prevent evidence being adduced in proceedings under this section, even if the evidence is of a communication made, or a document prepared, in connection with an attempt to negotiate a settlement of the dispute to which the affected agreement relates.

7E Court may also set aside other things

(1)   If the court decides to set aside an affected agreement under this Part, it may also set aside any of the following that gives effect to the agreement—

(a)   a contract, deed or other agreement,

(b)   an order or judgment of the court or of a lower court.

(2)   However, the court must not set aside the following—

(a)   a deed of release signed by or on behalf of the applicant in acceptance of an offer under the National Redress Scheme and an agreement relating to a relevant prior payment that has been taken into account in the offer,

(b)   an agreement to the extent to which—

(i)   it settled a cross-claim between 2 or more defendants, or

(ii)   1 defendant indemnified another,

(c)   a contract of insurance.

(3)   In this section—

National Redress Scheme means the National Redress Scheme for Institutional Child Sexual Abuse established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 of the Commonwealth.

7F Effect of setting aside affected agreement

(1)   A court may set aside an affected agreement or anything else under this Part only to the extent that it relates to the applicant.

(2)   An affected agreement and anything else set aside under this Part is void but only to the extent that it relates to the applicant.

(3)   An amount paid, including legal costs or disbursements, or other consideration given under the affected agreement—

(a)   is not recoverable despite the agreement being void, and

(b)   may be taken into account by a court in determining damages in proceedings for a cause of action to which the affected agreement relates.

44. Part 1C was inserted into the CLA by the Civil Liability Amendment (Child Abuse) Act 2021 (NSW) (the 2021 Act in response to the Royal Commission as part of a suite of reforms arising out of the recommendations of its 2015 Redress and Civil Litigation Report. The reforms removed barriers to survivors of abuse in seeking civil justice for the abuse perpetrated against them. Relevantly, in 2016, legislation was enacted abolishing limitation periods for child abuse claims both retrospectively and prospectively: see s 6A of the Limitation Act. In 2018, a requirement was introduced that a proper defendant be appointed for cases brought against unincorporated organisations thereby removing the Ellis defence: see Pt 1B of the CLA. As explained in the Explanatory Note to the 2021 Act, one of its objects was to enable courts to set aside certain agreements that settled claims for child abuse when it is just and reasonable to do so, in circumstances where there were certain legal barriers to the victim of the child abuse being fully compensated through a legal cause of action. This is what s 7D achieves by empowering a court to set aside such “affected agreements”.

45. The limitation period for child abuse claims and the Ellis defence have been abolished in all jurisdictions throughout Australia: see s 21C of the Limitation Act 1985 (ACT) and Ch 8A of the Civil Law (Wrongs) Act 2002 (ACT); s 5A of the Limitation Act 1981 (NT) and Pt 3A of the Personal Injuries (Liabilities and Damages) Act 2003 (NT); s 11A of the Limitation of Actions Act 1974 (Qld) and Pt 2A of the Civil Liability Act 2003 (Qld); s 3A of the Limitation of Actions Act 1936 (SA) and Pt 7A of the Civil Liability Act 1936 (SA); s 5B of the Limitation Act 1974 (Tas) and Pt 10C of the Civil Liability Act 2002 (Tas); s 27P of the Limitation of Actions Act 1958 (Vic), Pt XIII of the Wrongs Act 1958 (Vic) and the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic); Pt 2A of the Civil Liability Act 2002 (WA) and s 6A of the Limitation Act 2005 (WA).

46. The removal of the limitation and Ellis defence barriers is an acknowledgment by legislatures throughout Australia that these barriers were unjust impediments to child abuse survivors seeking redress for the harm that they suffered. The removal of limitation periods, for example, was an acknowledgment that children who suffer abuse often do not come forward to make a complaint until many years after the abuse because of feelings of shame and embarrassment or a fear of coming forward. This has long been recognised in the criminal law: see for example s 294 of the Criminal Procedure Act 1986 (NSW). The removal of both barriers was also an acknowledgment that such barriers often contributed to a power imbalance between survivors and institutions.

47. Part 1C therefore appears to be aimed at ensuring fairness between those plaintiffs who brought their claims in the past when the two legal barriers existed, and who settled their claim in an environment where legal barriers prevented them from being fully compensated, and plaintiffs who bring their claim now, when such barriers do not exist.

48. In this respect, the purpose of Pt 1C is remedial and beneficial. This is important because, as the plaintiff submitted, remedial legislation ought to be given “as generous a construction as the actual language of those provisions permits”: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at 509; [2013] HCA 35 at [50]. However, that principle does not trump other principles of statutory construction so that a court can disregard the purpose and context when determining meaning: Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 per Leeming JA at [85] (Sydney Seaplanes); see also New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 at [92], where Gageler J, as his Honour then was, said that the “principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively.”

44. This is consistent with how courts in other jurisdictions have analysed the respective provisions in other States: see, eg, Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234 at 264; [2020] VSCA 328 at [6]–[12] (WCB).

Evidence

Plaintiff’s evidence

50. The plaintiff relied on the following evidence, in addition to other documentary material exhibited in the proceedings:-

1. An affidavit of Mr Christopher Twomey sworn on 25 November 2022;

2. An affidavit of EXV’s father affirmed on 17 October 2022;

3. An affidavit of Mr Christopher Wheelahan affirmed on 27 September 2022;

4. An affidavit of EXV affirmed on 17 October 2022;

5. An affidavit of Mr Gregory Choat affirmed on 18 October 2022; and

6. A second affidavit of Mr Gregory Choat affirmed on 14 February 2023.

Christopher Twomey

51. Mr Twomey is a retired barrister who acted for the plaintiff during the 2007 Claim, including at the Settlement Conference and the Mediation. His affidavit evidence primarily went to his recollections of the day of the Mediation as well as to the liability issues facing the plaintiff. He said that the room in which the Mediation occurred was hot, that the air conditioning was faulty and that it took at least three hours before the first offer was made by the defendant’s representatives. He was then of the view that the plaintiff faced significant difficulties in proving his case in negligence because Mr Nisbett’s proclivities were not known. He believed more investigation was warranted before Knox’s liability could be established. He stated that the plaintiff settled on the day of the Mediation against his and Mr Wheelahan’s advice.

52. At the hearing, Mr Twomey gave evidence that he had no specific recollection of a discussion with the plaintiff about the limitation period, although his usual practice would have been to raise it, as it was an essential hurdle that had to be overcome. He also said that he thought that the plaintiff had a good case, but that he was concerned about proof. In that respect, Mr Twomey gave the following evidence:-

“But what – this is the difficulty that – that I’d have in that situation. I – when you commence proceedings you’ve got to certify that you’ve got reasonable prospects of success, so you can’t put the cart before the horse. So, my specific concern was proving that – that there was prior complaint that was – and if that involved – if prior complaint, that would probably demonstrate whether there was a system in place at Knox. But that was my principal concern about prior complaint.”

53. Mr Twomey said that he advised the plaintiff against settlement because he considered the offer so “paltry” compared with a full-value case, that he thought that it may have been advisable to go to the press to see if more could be found out about Mr Nisbett. He believed that this option may have assisted in discovering whether or not there had been any prior complaints about Mr Nisbett, about which Knox was aware or ought to have been aware.

54. Mr Twomey said that he thought that the March letter was “hardly worth the paper it was written on” and stated that the “without prejudice” marking suggested to him that the defendant would be free to take the Limitation Act point later.

55. Mr Twomey disagreed with the suggestion that his memory in 2007 and 2008 was unreliable. He said that he recalled the plaintiff well because he perceived him to be an honest person.

56. Mr Twomey recalled that the plaintiff was keen to settle at the Mediation, that the plaintiff was concerned about how long any proceedings would take (including an extension of time application), and that the plaintiff opted for the certainty of the amount of money offered on the day. He recalled telling the plaintiff in his discussions about settlement that he could give him no guarantees.

57. Mr Gyles SC, who appeared for the defendant with Mr Chiu, submitted that Mr Twomey’s evidence was unreliable and essentially a reconstruction. I accept Mr Twomey’s evidence. He had a good reason for recalling the events to the extent that he could: the plaintiff was put in what Mr Twomey perceived was an unjust position and was the rare client who settled a case against his advice. I accept that Mr Twomey believed that there was insufficient evidence to commence proceedings against Knox and that proceedings could not be certified pursuant to s 347 of the LPA. I observe that Mr Twomey made no reference to Ellis defence concerns, and I accept that it was not a barrier which he believed merited consideration. I accept too that he believed that the plaintiff was motivated to settle on the day of the Mediation and was averse to protracted litigation, and that the plaintiff opted for the certainty of the $115,000 offer made by Knox.

EXV’s father

58. In his affidavit, the plaintiff’s father describes his observations about the change in the plaintiff’s behaviour and personality after the alleged abuse occurred. He said that several months after his son’s disclosure to him in about November 2023, he brought up the alleged abuse with Mr Crawley, the principal of Knox at that time, who threatened him with defamation. I observe that I am unable to make a finding one way or the other about whether or not this occurred, although I accept that it was the plaintiff’s father’s subjective belief at the time.

59. With respect to the 2007 Claim, EXV’s father’s evidence was that he instructed Mr Wheelahan to make an offer of $120,000 in February 2007 so that the claim would go away quickly. A letter from Mr Wheelahan to EXV dated 13 February 2007 confirmed that the figure was not based on any particular measure of damages, but was a starting point so that the matter could be resolved quickly. It confirmed EXV’s instructions that he did not wish to obtain medical reports. It also stated that if a resolution was reached, EXV would have to sign a release preventing him from making any further claim.

60. The plaintiff’s father believed that his son’s prospects in court were poor because there was no evidence to prove that Knox had prior knowledge about Mr Nisbett’s proclivities. He said that he also believed that there may have been difficulties with the limitation period, and that if his son commenced proceedings immediately, he would do so with “no evidence”. For those reasons, the plaintiff’s father said that he encouraged the plaintiff to accept the (low) figure offered at the Mediation. He observed that his son found the Mediation to be stressful.

61. Mr Gyles suggested to the plaintiff’s father that the plaintiff had not commenced proceedings because he wanted to resolve the claim quickly and without the stress of further litigation. Further, Mr Gyles suggested to the plaintiff’s father that Knox never relied on a limitation defence. The plaintiff’s father disagreed with these propositions and maintained that the reason for not initiating proceedings was due to a lack of evidence and because they had been advised by their lawyers that the limitation period was an issue.

62. The plaintiff’s father was unsure whether or not Mr Twomey had advised him about the effects of the Settlement Deed or whether he had informed him about ways to obtain information about Knox’s knowledge of Mr Nisbett’s behaviour. He could not recall Mr Twomey or Mr Wheelahan advising the plaintiff not to settle. It was put to him that these were important matters and if he could not remember them, then his memory of the Mediation was poor. The plaintiff’s father did not accept these propositions.

63. The plaintiff’s father gave vague evidence about knowing that there had been investigations into Mr Nisbett. He said that he tried to get a report through the AIS, but could not explain why he had not asked Mr Wheelahan to ask Knox for any reports which might have existed. He denied that he knew that commencing proceedings might have opened avenues of compulsory production of documents and information.

64. In my opinion, the plaintiff’s father did his best to give evidence as well as he could, so many years after the execution of the Settlement Deed. I accept that his understanding at the time of the Mediation was that there was an unresolved limitation issue, but I find that it was the lack of evidence to prosecute the claim against Knox which was the driving force behind his encouragement of his son to settle the claim. This aligns with the understanding of his son (see below) and the evidence, which I accept, of both Mr Twomey and Mr Wheelahan (to which see below) that they believed in December 2008 that they could not certify that the proceedings had reasonable prospects of success pursuant to s 347 of LPA. I infer that discussions between Mr Twomey and Mr Wheelahan and the plaintiff and his father about there being insufficient evidence were expressions in lay terms about the legal hurdle posed by s 347 of the LPA.

65. The plaintiff’s father’s recollections were clearly affected by the passage of time, and his evidence was in many respects unreliable. For example, he could not recall Mr Twomey and Mr Wheelahan advising the plaintiff not to settle, which I find occurred. Further, he could not recall either Mr Twomey or Mr Wheelahan explaining the effect of the Settlement Deed, which I also find occurred.

Christopher Wheelahan

66. In his affidavit, Mr Wheelahan stated that he was aware that when he first received instructions from EXV (likely at the end of 2006), the limitation period was running with respect to his claim. Mr Wheelahan said that he relied on verbal assurances from Gadens that Knox would not rely on a limitation defence during the course of negotiations. However, he believed that they were reserving their right to do so. He formed this view because the March Letter was marked “without prejudice” and because it referred only to “current” instructions. Mr Wheelahan stated that he believed that the limitation period remained a live issue.

67. Mr Wheelahan said that the question of liability was the most significant issue faced by the plaintiff. He stated that, had he known that Knox in fact knew about Mr Nisbett’s inappropriate behaviour, he would have been even more assertive in advising the plaintiff not to accept the settlement offer. Mr Wheelahan said that the plaintiff was very anxious about the prospect of the matter being litigated in court. He believed that both parties wished to resolve the matter without recourse to litigation.

68. In cross-examination, Mr Gyles suggested to Mr Wheelahan that his recollections of the Settlement Conference and the Mediation were not very clear, which is why he failed to mention those events in his affidavit. Mr Wheelahan’s reply, which I accept, was that he had simply not turned his mind to those events. He destroyed the plaintiff’s file in May 2019, and so relied only on his memory when preparing his affidavit. He denied that he could not remember aspects of the Mediation, and disagreed with Mr Gyles’s suggestion that he did not have a genuine memory of feeling that some injustice had occurred at the time of the Mediation.

69. Mr Wheelahan was asked whether the defendant had stated that it was not contesting liability at the settlement conference in December 2007. He said that he could not recall. He was taken to a document, being a letter from Ms Blacker dated 13 December 2007 that stated:-

“While my client does not make any admissions in respect of liability, for the purpose of the proposed settlement conference, my client does not contest liability.”

70. Mr Wheelahan said the document and its contents had escaped his mind at the time that he swore his affidavit. He was then taken to a letter which he wrote to the plaintiff dated 13 February 2007. In that letter, he wrote:-

“On the basis of the information you have supplied a finding of liability against Knox does not present a hurdle to a successful claim.”

71. It was put to Mr Wheelahan that this letter suggested that the plaintiff had a good case on liability against Knox. Mr Wheelahan disagreed. He said that while this may be the literal interpretation of the letter, it was clearly wrong, and that in February 2007 he had no evidence capable of establishing Knox’s liability. I accept that this letter contains a material error, and that at the time of writing it Mr Wheelahan thought the opposite – that he had no evidence to establish Knox’s liability. Rather, as Mr Wheelahan stated in his evidence, he believed that the plaintiff had a good case against Mr Nisbett personally.

72. Mr Wheelahan could not recall the plaintiff telling him about Mr Nisbett’s nefarious reputation at Knox. In any event, he said that he did not believe that rumours could form the foundational basis for the filing of a Statement of Claim. Mr Wheelahan said that at no time could he have certified that the plaintiff had reasonable prospects of success as against Knox in negligence.

73. Mr Wheelahan was asked about the limitation period. He recalled getting specific verbal assurances from Knox’s lawyers that they would not be relying on a limitation defence. In a letter dated 23 May 2007 to Gadens, he sought assurances from the defendant that they would not rely on a limitation defence. In that document, he said that if no assurance was to be given, then his client would have no option but to commence proceedings to protect his interests. He received no reply to this letter. He sought further confirmation in a letter to Ms Blacker on 17 December 2007. Ultimately, Mr Wheelahan received the March Letter in reply.

74. Mr Gyles put to Mr Wheelahan that if the limitation period truly concerned him, then there would be documentary evidence after the March Letter requesting an unconditional assurance that it was not going to be raised. Mr Wheelahan disagreed, and replied that even though he did not seek those assurances, the limitation period was a live issue in his mind the entire time. He stated that while he had no specific recollection of discussing the limitation period with Mr Twomey, he very much doubted that it was not discussed, so important was that issue. He disagreed with the proposition that he could not recall these discussions because he was satisfied that Knox was not taking the point.

75. Mr Wheelahan had good reason to recall the plaintiff and his case, and his evidence largely aligned with that of Mr Twomey. I accept that at no time could he have certified the negligence claim as having reasonable prospects of success pursuant to s 347 of the LPA. To the extent that the March Letter, curiously marked “without prejudice”, was said to give comfort to the plaintiff’s legal representatives that the defendant would not raise the limitation issue, I accept the evidence of both Mr Wheelahan and Mr Twomey that it gave them no comfort in the long term, which in my opinion was a reasonable belief in the circumstances. However, it is also true that no correspondence emanated from Mr Wheelahan after that time, from which I infer that he was content to rely on the assurance in the March Letter, at least up until the Mediation.

76. Mr Wheelahan disagreed with Mr Gyles’s suggestion that the plaintiff was not willing to go to court. Whilst he agreed that the plaintiff was anxious to settle, he said that this was not at any cost. He did not accept that the plaintiff just wanted to put the matter behind him. He accepted that whilst the plaintiff saw a psychiatrist and vocational expert for the defendant, other than a report from a psychiatrist, the plaintiff was not willing to work up his case by amassing evidence.

77. The effect of Mr Wheelahan’s evidence was that whilst the limitation period loomed as a possible issue, the real issue facing the plaintiff at the time of the Mediation was a lack of evidence that would establish Knox’s liability in negligence. Notwithstanding that view, both Mr Wheelahan and Mr Twomey advised the plaintiff not to accept the defendant’s final offer at the Mediation. After the plaintiff consulted his father, he resolved to accept the offer. I accept Mr Wheelahan’s evidence that thereafter, he and Mr Twomey explained the effect of the Settlement Deed to the plaintiff who appeared to understand that it determined his rights once and for all time.

78. In re-examination, Mr Wheelahan was asked about the aspects of the Mediation with which he was unhappy. His evidence aligned with that of Mr Twomey. The Mediation occupied an entire day and was difficult. The air conditioning was not working and it was uncomfortable. It took some hours to get an offer from the defendant. It was a long day. In my view, there was nothing extraordinary about the conditions of the Mediation, which was conducted by a respected retired Supreme Court judge. I do not doubt, however, that the process was a stressful experience for the plaintiff.

EXV

79. In his affidavit, the plaintiff sets out the events of the alleged abuse and the effects that it has had on his life. He also gives some evidence about the conditions of Mediation, which is consistent with that of Mr Twomey and Mr Wheelahan.

80. In his affidavit, the plaintiff said that he was advised by his lawyers at about the time of the Mediation that winning his case would be difficult, as his lawyers had been unable to uncover evidence that Knox was aware or ought to have been aware that Mr Nisbett was a risk to him at the time of the alleged abuse. He said that he believed that there were several legal barriers to his case, one of which was that the limitation period had expired. He said that he felt that he had to settle at the Mediation because of the legal barriers he faced.

81. The plaintiff said in his affidavit that at the conclusion of the Mediation, his lawyers advised him that he should settle his case, as they thought he would lose it. He said that they told him that if he lost his case, he would be in significant debt and that it was very risky to take the next step and go to court, which would take a lot more time.

82. In cross-examination, the plaintiff was asked whether his lawyers informed him that, by accepting payment from Knox, he was releasing Knox from any liability in respect of the alleged abuse. He could not specifically recall this occurring, but he did not deny that he was so advised.

83. The plaintiff stated that his reasons for pursuing the present claim was to get justice, and so that he would receive adequate compensation for the harm that he had suffered. He said that Knox had let him down. He agreed that justice could be achieved by either pursuing a case to judgment against Knox or by settling without commencing proceedings.

84. He could not recall ever having a meeting with Mr Weeks when he was headmaster at Knox at any time.

85. The plaintiff maintained that he had strong memories about certain things. He was taken to the 13 February 2007 letter from Mr Wheelahan which suggested that he had a good case on liability against Knox. The plaintiff disagreed that Mr Wheelahan had ever told him that. He understood that he had to prove that Knox was at fault and that this meant finding evidence about Knox’s knowledge of Mr Nisbett’s prior inappropriate behaviour. He stated that he believed that his case was very risky, based on the advice of his lawyers.

86. The plaintiff was asked whether or not he had been told about the limitation period during his claim. The plaintiff said that he was told by his lawyers and his father that time was a problem. He disagreed with the suggestion that he was mistaken about his recollection and stated that it was a “huge” factor. He agreed, however, that it was a big advantage to take the money offered on the day of the Mediation so that he did not face an uncertain future and the risks of litigation.

87. It was put to the plaintiff that in his affidavit, his evidence was that his lawyers suggested he should accept the settlement offer, which was contrary to their evidence in these proceedings, and which suggested that his memory was unreliable. The plaintiff denied this. He said that his lawyers gave him both options, but ultimately advised him to go to court rather than accept the offer. He said that he and his father then discussed the offer, and after considering all matters, the plaintiff decided to accept the offer.

79. In a particularly candid moment, the plaintiff said that the limitation issue was not the primary driver – or “even close to it”. Rather, his motivation for accepting the offer was the lack of evidence to prove his case against Knox. It was that factor which caused him to accept the offer against the advice of his lawyers.

80. I accept that the plaintiff was trying his best to assist the court, but the limits of his memory, in my view made his evidence largely unreliable. He accepted that his memory was poor in many respects, which is understandable against the backdrop of his injuries and disabilities taken at their highest. His evidence about the limitation issue largely aligns with that of his father, Mr Twomey and Mr Wheelahan, which I accept was a consideration as it was unresolved, but not a material one at the time of the Mediation. Rather, it was his concern about the lack of evidence against Knox (which is the lay expression of the s 347 certification issue) which motivated him to accept the offer at the Mediation. There were other considerations which he took into account: a desire to have certainty and have the matter over and done with, a desire to get a lump sum of money expeditiously, and a fear of protracted proceedings which he might lose. I accept that his lawyers carefully advised him about the effect of the Settlement Deed and his options. I accept too, that they advised him not to settle with the defendant, but that he rejected their advice.

Gregory Choat

90. Two affidavits of Mr Gregory Choat were read. He was not cross-examined.

91. The first affidavit of Mr Choat, the plaintiff’s current solicitor, affirmed on 18 October 2022, goes primarily to quantum. Mr Choat’s evidence suggested that the plaintiff’s current claim has a value of about $1.8 million plus costs. As at 2008, Mr Choat notionally valued the plaintiff’s claim in excess of $1 million plus costs.

92. Mr Choat’s second affidavit affirmed on 14 February 2023 annexed the Case Study and several other documents.

Defendant’s evidence

93. The defendant relied on the following evidence as well as other exhibited documents:-

1. A witness statement of John Weeks dated 13 February 2023;

2. An affidavit of Peter Dwyer sworn on 3 March 2023; and

3. An affidavit of Wendy Blacker sworn on 3 March 2023.

John Weeks

94. Mr Weeks was employed as the headmaster of Knox from January 2004 to March 2018. He gave evidence at the Royal Commission, for the purpose of the Case Study. As headmaster, Mr Weeks was involved in implementing child protection policies and practices. He was involved with claims concerning complaints of child sex abuse.

95. Mr Weeks’s statement outlines some of the details regarding the first investigation by Mr Wilson, described above. He said that he first saw that report in January 2004 and was not satisfied that the investigation was sufficient, particularly because the plaintiff had refused to disclose details or be questioned by Mr Wilson about his complaint. Mr Weeks therefore requested that Mr Wilson produce another report, concentrating on a broader investigation of Mr Nisbett.

96. Mr Weeks became aware of EXV’s complaint upon reading Mr Wilson’s original report. He recalled meeting EXV on one occasion at Knox prior to him making a claim, when he told Mr Weeks about the alleged abuse. Mr Weeks told EXV that he believed him.

97. Mr Weeks said that no one, including the plaintiff, his father or the plaintiff’s legal advisors, had ever asked him for any reports or investigations.

98. Mr Weeks could not recall any discussions with anyone about limitation periods with respect to the 2007 Claim. He stated that he was not significantly involved, as the 2007 Claim was being handled by the Uniting Church and its lawyers. However, his general understanding at the time was that Knox would not rely on a limitation defence because it was a technical defence that was inconsistent with Knox’s responsibilities to its students. He could not recall a limitation defence ever being employed by Knox to stop a matter from progressing.

99. At the hearing, Mr McCarthy, who appeared with Mr Masur for the plaintiff, asked Mr Weeks who employed Mr Nisbett. Mr Weeks’s evidence was that Mr Nisbett was employed by Knox, and that Knox was owned by the Uniting Church.

100. Mr Weeks said that his main role in respect of the settlement of claims was to offer an apology on behalf of Knox and to answer questions that might be put through counsel to Knox for clarification. However, he said that he played no part in the financial settlement of the plaintiff’s claim. Rather, it was the insurer who “called the shots” with respect to the amount offered. He did not know who might be making any decision about raising a limitation defence. He was not present at the Mediation.

101. Mr McCarthy suggested to Mr Weeks that, given what was contained in the Wilson reports, he must have known that Mr Nisbett’s prior inappropriate behaviour was relevant to the 2007 Claim. Mr Weeks said that it had not crossed his mind, and he noted that he immediately shared all information with the NSW Ombudsman.

102. Mr Weeks was asked about a meeting that he said occurred with the plaintiff. He said that it may have occurred in about 2005 or 2006. He stated that at that meeting, the plaintiff was concerned about what Mr Nisbett had done to him and what he may have done to others. Mr Weeks was asked whether he believed that he ought to have raised, at that time, the prior allegations against Mr Nisbett and the Wilson reports. Mr Weeks said that he told the plaintiff about the reports but did not tell him that there were allegations of sexual abuse, as these were not findings that were sustained in those reports.

103. Mr Weeks was taken by Mr McCarthy to several allegations contained in the final Wilson report, some of which were sustained, and others which were not. He was asked whether he believed that he ought to have informed the plaintiff about these allegations during their meeting. Mr Weeks said that he had told the plaintiff that there were other matters, which was meant to convey to the plaintiff that his allegation was not isolated and that he bore no responsibility. However, he did not inform the plaintiff of any of the specific allegations. I observe that the allegations that were sustained in Mr Wilson’s final report were the favouring of particular boys prior to 1987; that prior to 1987, Mr Nisbett had invited favoured boys to his flat; that prior to 1987, Mr Nisbett had intimate conversations with favoured boys; that prior to 1987, Mr Nisbett had brushed past a student in the photography darkroom in a manner that caused the student concern; that in 1986, following an investigation into his conduct, Mr Nisbett was removed from his position of Boarding House Master; that in a period leading up to the early 2000s, Mr Nisbett waved at a boy returning from the showers who had his towel off; and that during 1986 in the photography darkroom, Mr Nisbett’s right elbow contacted a student’s groin and he rubbed this student’s groin continuously.

104. Mr McCarthy put to Mr Weeks that the meeting with the plaintiff either never occurred, or that it occurred after the case had been resolved. Mr Weeks disagreed with the first proposition but said that the meeting could have occurred in 2008 as he could not specifically recall when it happened. In re-examination he stated that it definitely occurred before Knox received a letter dated 28 February 2007 from the plaintiff’s solicitors in which an offer was made to Knox to settle the claim for $120,000.

105. Mr McCarthy suggested to Mr Weeks that he knew that the plaintiff’s case against Knox would have been better if the plaintiff had access to the Wilson reports. Mr Weeks stated that he would have given the reports to the plaintiff if he had asked for them, and he said that he gave the reports to Ms Blacker prior to the Mediation.

106. I accept that Mr Weeks was an honest and candid witness who did his best to assist the Court. I accept his evidence that so far as he was aware, Knox did not take the limitation defence point and that he would have given the reports to the plaintiff had he asked for them. On the evidence, I cannot determine the date on which Mr Weeks met EXV, but I accept that they met at Knox sometime prior to 28 February 2007.

Peter Dwyer

107. The defendant read the affidavit of Peter Dwyer, barrister, sworn on 3 March 2023. Mr Dwyer stated that he is informed that he acted for Knox during the 2007 Claim, but that he had no recollection of it or of any of the events surrounding the 2007 Claim. He was not cross-examined.

The affidavit of Wendy Blacker

108. The defendant endeavoured to tender the affidavit of Ms Blacker affirmed on 3 March 2023. An issue arose because Ms Blacker was unable to attend court to give oral evidence.

Whether or not Ms Blacker was unavailable

109. On the first day of the hearing, Mr Villa SC appeared on behalf of Ms Blacker to make an application that she be excused from attending court in response to a subpoena issued by the defendant for her attendance. He tendered three documents, the contents of which will remain confidential as they concern her health. Mr Villa’s application was not opposed by either party, so I made an order pursuant to r 33.4(1) of the UCPR that Ms Blacker be excused from attending court. It was therefore not in dispute that Ms Blacker was unavailable for the purposes of the Evidence Act1995 (NSW) (the Evidence Act).

Whether or not Ms Blacker’s affidavit ought to be admitted into evidence

110. The defendant proposed to rely on Ms Blacker’s affidavit pursuant to r 35.2(3) of the UCPR and ss 63 and 67 of the Evidence Act.

111. Rule 35.2 of the UCPR provides:-

35.2   Cross-examination of deponent

(1)   A party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made.

(2)   Such notice is to be given a reasonable time before the time at which the person is required to attend for cross-examination.

(3)   If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise.

(4)   If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.

112. Sections 63 and 67 of the Evidence Act provide:-

63 Exception: civil proceedings if maker not available

(1)   This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)   The hearsay rule does not apply to—

(a)   evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or

(b)   a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

67   Notice to be given

(1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.

(2)   Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(3)   The notice must state—

(a)   the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and

(b) if section 64 (2) is such a provision—the grounds, specified in that provision, on which the party intends to rely.

(4)   Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.

(5)   The direction—

(a)   is subject to such conditions (if any) as the court thinks fit, and

(b)   in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

113. Rule 35.2(3) of the UCPR states that if a deponent does not attend for examination, the affidavit cannot be used unless the deponent is dead or unless the court otherwise orders. Ms Blacker was not deceased, and the court’s leave was required. As I disallowed the tender of Ms Blacker’s affidavit pursuant to the Evidence Act, I did not grant leave for it to be used pursuant to the UCPR. My reasons for doing so are as follows.

114. Pursuant to s 63, which concerns first-hand hearsay in civil proceedings, a previous representation made by a person who is not available to give evidence about an asserted fact may still be accepted into evidence if that person is unavailable and the notice requirements of s 67 are met. The party attempting to adduce the evidence must give reasonable notice to the other party pursuant to s 67. Pursuant to r 31.5 of the UCPR, a s 67 notice must be given not later than 21 days before the hearing. The details which must be contained in the notice are governed by s 67(3) of the Evidence Act and regs 4(2), (3), (5) and (6) of the Evidence Regulation 2020 (NSW) (Evidence Regulation). Despite a failure to give reasonable notice, notice may be dispensed with pursuant to s 67(4) if a court makes a direction that s 63(2) is to apply. In considering whether such a direction should be given, a court must have regard to the factors set out in s 192(2) of the Evidence Act. Section 192 of the Evidence Act provides:-

192   Leave, permission or direction may be given on terms

(1)  If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2)  Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account—

(a)  the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b)  the extent to which to do so would be unfair to a party or to a witness, and

(c)  the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d)  the nature of the proceeding, and

(e)  the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

115. The defendant submitted that it had given reasonable notice, or in the alternative, that notice ought to be dispensed with and a direction given pursuant to s 67(4) of the Evidence Act.

116. On 3 May 2023, the defendant read an affidavit of its solicitor Mathisha Panagoda sworn on 3 May 2023 in support of the application. In his affidavit, Mr Panagoda stated that he issued (and presumably served) a subpoena to attend to give evidence on Mr Blacker on 17 April 2023, about 2 weeks before the hearing and well outside the notice period. Mr Panagoda said that he had conversations with Ms Blacker on 20, 24, 26 and 28 April 2023 about her personal circumstances. On 20 April 2023, Mr Panagoda became aware that Ms Blacker had a serious illness. Notwithstanding that information, he did not serve a notice which may have preserved his position or permitted the parties to approach the court to have Ms Blacker’s evidence taken before the hearing or by audio-visual link. Neither was the plaintiff informed. On 24 April 2023 Ms Blacker disclosed to Mr Panagoda that she had a life threatening illness. Notwithstanding that additional information, he did not serve a notice which may have preserved his position or permitted the parties to approach the court to have Ms Blacker’s evidence taken before the hearing or by audio-visual link. Neither was the plaintiff informed. On 26 April 2023, Ms Blacker disclosed further medical information to Mr Panagoda, and on 28 April 2023, Ms Blacker contacted my chambers directly by email, without the knowledge of the parties. Given the irregular nature of that communication, I destroyed the email on the first day of hearing with the consent of the parties, without disclosing the confidential content of the document. That communication was subsequently tendered by Mr Villa on his application, and both parties became aware of its content.

117. Mr Panagoda said that on 28 April 2023, being the last business day prior to the hearing, he was not certain whether Ms Blacker would be unavailable to attend court. He stated that he did not turn his mind to the necessity of filing a s 67 notice and did so only after receiving counsel’s advice on 1 May 2023. The defendant gave notice to the plaintiff on 2 May 2023, which was the second day of the hearing, on the day Ms Blacker was meant to give evidence. Mr Panagoda was not cross-examined.

118. Mr Chiu, junior counsel for the defendant, submitted that it was not unreasonable not to have given notice on 24 April 2023. He submitted that at that time, the circumstances were not such that it was certain that Ms Blacker would not be able to attend. Rather, Mr Chiu submitted that it was not until it was specifically communicated to Mr Panagoda that Ms Blacker would not be attending court, or until I made the order excusing her, that it would have been reasonable to give notice.

119. Mr McCarthy opposed Ms Blacker’s affidavit being admitted pursuant to s 63. He submitted that there had not been reasonable notice, that notice ought to have been given earlier and that, even on Mr Panagoda’s evidence, there had been significant delay. He further submitted that the notice itself did not conform with the requirements set out in s 67(3)(a) of the Evidence Act and reg 4(2) of the Evidence Regulation. Alternatively, Mr McCarthy submitted that Ms Blacker’s affidavit ought to be excluded pursuant to s 135 of the Evidence Act, as it was unfairly prejudicial to the plaintiff. I observe that similar, but not identical, considerations arise pursuant to ss 192(2)(b) and (c).

120. Having considered the parties’ submissions, I found that reasonable notice had not been given, that the notice was defective, and that I would not make a direction pursuant to s 67(4). I therefore found that the affidavit of Ms Blacker was not admissible for the hearsay purpose and I rejected its tender.

121. First, there was some inexplicable delay by the defendant in serving the s 67 notice. No thought was given to secure Ms Blacker’s attendance until 17 April 2023, which was outside the notice period, and no explanation was provided as to why this occurred. Furthermore, the defendant had a good indication of the significance of Ms Blacker’s circumstances by 24 April 2023 at the latest, and on that date the defendant must have thought that there was a real likelihood that she would not come to court to give evidence. Despite this, notice was only given on 2 May 2023, being the second day of the hearing and on the same day that Ms Blacker was meant to give evidence. In my opinion, giving the notice on that day was unreasonable.

122. Second, the s 67 notice was defective in that it did not comply with regs 4(2) and (3) of the Evidence Regulation. The content of the notice does not state the particular provisions of Pt 3.2 Div 2 of the Evidence Act on which the defendant intended to rely in arguing that the hearsay rule did not apply to the evidence: s 67(3)(a) Evidence Act. The defendant’s notice only made reference to “a previous representation, being Ms Blacker’s affidavit affirmed on 3 March 2023”. No specificity or detail was given about any of the multiple previous representations contained in that affidavit (some of which were irrelevant) and on which of those representations the defendant proposed to rely. The affidavit was not attached to the notice.

123. I find that reasonable notice was not given in all the circumstances.

124. I turn then to the question of whether or not notice ought to have been dispensed with, either absolutely or subject to conditions pursuant to s 67(4). Mr Chiu submitted that the correct approach was to determine whether or not there was any unfairness to the plaintiff in admitting the affidavit by considering the difference between the situation where reasonable notice had been given, for example on 24 April 2023, compared with the situation where notice had been dispensed with. Making that comparison, Mr Chiu submitted that there would be no difference to the plaintiff.

[299] The precise scope of this dictum remains to be elucidated. It is not, for example, directed to general law principles. Marshall was concerned with a line of English authority, with respect to a phrase found in the Queensland legislation, which the High Court declined to follow. Somewhat different principles may apply in circumstances where two Australian legislatures, largely contemporaneously, adopt similar or identical language in pursuit of a common statutory purpose. In such circumstances, the coherent development of the law within Australia would not be promoted by the courts of one jurisdiction adopting a different construction to those of another. On the other hand, Walker Corporation indicates that a more relaxed approach might be adopted in such circumstances than would be the case with respect to federal laws or national uniform legislation.”

Just and reasonable

168. I turn now to consider the meaning of the phrase “just and reasonable” in s 7D(2). Other courts have held, and both parties to these proceedings agree, that the Court is granted a wide discretion in setting aside a settlement deed: see, eg, JAS v Trustees of the Christian Brothers (2018) 96 SR (WA) 77; [2018] WADC 169 (JAS) at [19]; WPM v Trustees of the Christian Brothers [2020] WADC 112 at [56]; WCB at [104]. The plaintiff bears the onus of establishing that it is just and reasonable to set aside an affected agreement.

169. Almost every similar provision, in almost every State and Territory, all enacted in response to the Royal Commission uses the phrase “just and reasonable” when conferring power to set aside an agreement. In Tasmania, a court may set aside the agreement “on the grounds that it is in the interests of justice to do so”. In the ACT, the agreement may be set aside if the agreement itself is not just and reasonable. In my opinion, some guidance can be taken from the decisions of other States, and particularly the decisions in the Victorian and Queensland Courts of Appeal when looking at the expression “just and reasonable”, there being no relevant appellate decisions of any other Court of Appeal.

170. In WCB, the court said at [97]-[98]:-

“…In essence, if the Court is satisfied that it is ‘just and reasonable to do so’, it may make an order setting aside the settlement agreement, and any other order it considers appropriate in the circumstances. No doubt, in reaching that stage of satisfaction, the Court may, and ordinarily should, take into account that the order, that is sought, would disturb the legal rights and obligations of the parties that are contained in the settlement agreement…

…The power of the Court, to set aside a settlement agreement, is expressed in discretionary terms, because it is dependent upon the Court making an appropriate evaluative judgment that it is ‘just and reasonable’ that such an order be made…”

171. In this respect, I adopt the comments of the Victorian Court of Appeal.

172. As to the relevance of the influence of the expiry of the limitation period on the exercise of the discretion, in TRG, Fraser JA said at [29]:

“… In light of the legislative purpose of conferring a discretionary power upon courts to provide a remedy for what is to be regarded as an unfairness constituted by an influence, or a possible influence, upon a settlement of expiry of the applicable limitation period, it seems unlikely that the discretion would be exercised to set aside a settlement agreement in the absence of a finding that there was such an influence adverse to the applicant, or at least a finding that there may have been such an influence.”

173. In WCB, looking at the Victorian provision comparable to s 7D, the Victorian Court of Appeal said at [106]:-

“In that context, it would be entirely artificial, in construing s 27QE, to ignore the cumulative effect of the two principal barriers that obstructed the rights of victims of childhood sex abuse, such as the plaintiff, from obtaining suitable redress through the courts, namely, the inability to identify a relevant legal entity as a defendant (the Ellis defence), and the effluxion of the applicable time limit then prescribed by the law. Each of those two obstacles worked in a manner which was unreasonable and unfair to persons who had suffered, and continued to suffer, as a result of the effects of abuse inflicted on them during their childhood.”

174. In Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73 (DZY), the Victorian Court of Appeal (Beach and Macaulay JJA) said at [109]:-

“Hence, built into the necessary condition for the availability of the s 27QE remedy is the requirement that the particular settlement occurred at a time — but not beyond that time — when the time limitation and/or Ellis defences were capable of unfavourably influencing settlements for claimants. That influence led to the mischief — a potentially unfair settlement — which the reform was designed to remedy. In our view, that observation reinforces the centrality of the actual influence of one or both of those two barriers in the consideration of whether it is just and reasonable to set aside a settlement agreement.”

175. In my view there is essentially only one question for the Court – whether or not it is just and reasonable to set aside an affected agreement: see WCB at [90]; Gary Pearce v The Corporation of the Society of the Missionaries of the Sacred Heart [2022] VSC 697 (Pearce) at [84]. In answering that question, I must turn my mind to the position of the plaintiff at the time of the Settlement Deed. If the settlement was materially influenced by either the expiry of the limitation period or the Ellis defence, it is likely that it will be just and reasonable to set an agreement aside. However, the existence of those barriers is not determinative, and the Court may consider other factors such as those set out in s 7D(3).

176. This approach is supported by case law from other jurisdictions. In WCB, the primary judge found that, on the evidence, the limitation period and proper defendant issue both had a material impact on the settlement agreement and set the agreement aside. In TRG, the Court refused to set aside the agreement because, on the facts, the plaintiff had not established that either of the legal barriers had materially affected his decision to settle. In Pearce, it was held that the existence of the Ellis defence had a material impact on the settlement, even if the effect of it was greater in the plaintiff’s mind than it was in actual fact. In DZY, the Court said at [113]:-

“As we would put it, however, consideration of the actual influence of the two legal obstacles is central to the determination of whether it is just and reasonable to set aside a settlement. Because of the importance to the integrity of the adversarial legal system of adherence to judgments and settlements, apart from the influence of those obstacles, other factors should be seen as supportive rather than leading factors in determining whether it is just and reasonable to set aside a settlement.”

177. I do not accept the plaintiff’s contention that there is a recognisable “Queensland approach” which is substantially different to a “Victorian approach” or that the NSW Parliament intended to adopt the “Victorian approach” in Pt 1C. There is no evidence before me that the NSW Parliament considered two distinct approaches and favoured the Victorian one. The structure of Pt 1C most closely resembles the similar legislation in Tasmania, other than the “interests of justice” test adopted in that jurisdiction. Clearly, Parliament made a conscious decision to adopt the “just and reasonable” test from other States, as the Second Reading speech makes clear. Further, the decisions in TRG, WCB and DZY do not appear to me to adopt an approach so different as to warrant drawing any such distinction. Unsurprisingly, those decisions were decided on their unique facts.

178. The onus is on the plaintiff to satisfy the Court that a legal barrier materially influenced his decision to settle, or of the existence of other factors that make it just and reasonable to set aside a settlement deed: see JAS at [20]; WPM at [57]. While I accept that the defendant may lead evidence militating against the exercise of the Court’s discretion, I do not accept that the defendant in these proceedings was required to lead evidence about its internal structure to disprove that an Ellis defence was available to it in circumstances where the issue was not raised by the plaintiff except in a cursory way. There was simply no evidence from which I could draw an inference that either the defendant proposed to rely on such a defence or that the plaintiff’s legal representatives considered that it might arise in the future.

179. The phrase “just and reasonable” implies that the exercise of the discretion ought to be such that is just and reasonable between the parties. The effect for each party in the alterations of their rights embodied in any settlement deed will be relevant: WCB at [144]; TRG at [28]; DZY at [91]. The interests of both parties must be considered, and the relative weight to be given to material factors in that exercise depends upon a judicial assessment of the particular circumstances of each case: TRG at [28]. This approach is consistent with the text of the statute, the interstate authorities and the purpose of the legislation set out in the Attorney-General’s Second Reading speech.

Should the settlement deed be set aside?

180. Having come to those conclusions, I turn now to considering if, in all of the circumstances of this case, the Settlement Deed should be set aside.

Plaintiff’s submissions

181. The plaintiff submitted that he faced legal barriers that prevented him from being fully compensated during the 2007 Claim (being the limitation issue and the Ellis defence); that he entered the Settlement Deed on a false factual footing that was only discovered when the Royal Commission unearthed material about Knox’s failure to take action against Mr Nisbett prior to the alleged abuse (set out in the Case Study); that he received only a trivial amount of compensation; and that the conditions of the Mediation were harsh and uncomfortable. The plaintiff submitted that these factors, in combination, would cause me to find that it is just and reasonable for the Settlement Deed to be set aside.

182. With respect to the impact of the limitation period, the plaintiff submitted that he had discharged his evidentiary onus and had established that the relevant limitation period had expired at the time of the Settlement Deed and that it was a relevant forensic factor in the plaintiff’s decision-making process leading up to the signing of the Settlement Deed. He relies on the evidence of his witnesses and submitted that the Court ought not to accept the defendant’s contention that the March Letter provided sufficient comfort to the plaintiff and his lawyers in 2008 that the defendant was not going to rely upon a limitation defence. I observe that it was only the limitation period with respect to the negligence proceedings against Knox which had expired at the date of the Mediation. The limitation period with respect to a vicarious liability claim against Knox had yet to expire. So far as the effect of the March Letter is concerned, whilst I have already expressed my view about its curiosity, the fact that Mr Wheelahan did nothing more to ensure the preservation of the limitation period after its receipt, in spite of the fact that the limitation period had expired, tells against his evidence to the effect that he believed that he could not then rely on it as evidence that the defendant had induced the plaintiff to delay commencing proceedings.

183. The plaintiff further submitted that the defendant could not be liable in 2008, as Knox was run by the School Council, which was an unincorporated entity and therefore not able to be sued. The plaintiff conceded that he did not adduce evidence that this was ever taken into account during the currency of the 2007 Claim by either the plaintiff, his father, Mr Wheelahan or Mr Twomey. Nonetheless, the plaintiff submitted that this presents a prima facie legal barrier that the Court may take into account. I reject this submission. On the evidence before me, no point was ever taken that Knox, at least in the pre-litigation stages, was anything other than the proper defendant, and there is no evidence that the current defendant would not have assumed responsibility. I observe that it was the current defendant that entered into the Settlement Deed. No evidence was adduced that Knox had ever taken the Ellis defence point.

184. The plaintiff submitted that the Court should take into account that, at the time of the Mediation, Mr Wheelahan and Mr Twomey believed that a Statement of Claim could not be certified as having reasonable prospects of success or alternatively, that the lack of evidence establishing negligence on the part of Knox should be taken into account generally in the exercise of the Court’s discretion pursuant to s 7D.

Defendant’s submissions

185. The defendant submitted that the plaintiff has not established that his decision to resolve the 2007 Claim was materially affected by any legal barrier and that rather, any unequal bargaining position between the parties arose from a subjective perception by the plaintiff and his lawyers that the merits of the negligence claim faced evidentiary barriers that needed to be overcome. The defendant submitted that the primary driver of the plaintiff’s decision to settle his claim against legal advice was his own desire not to pursue it further. The defendant submitted that in all of the circumstances, it would not be just and reasonable to set aside the Settlement Deed.

186. The defendant submitted that it is doubtful that the plaintiff ever considered the limitation period to be a legal barrier. Mr Gyles contended that there is no evidence to suggest that the defendant ever raised or relied upon a limitation defence and that this is consistent with the contemporaneous documentary evidence in these proceedings. The defendant submitted that the plaintiff’s evidence, to the extent that it was inconsistent with the contemporaneous documentary evidence, ought to be rejected. It was submitted that the Court ought to be cautious in accepting assertions from witnesses about their states of mind 15 years ago. Even if the Limitation Act defence had been raised, the defendant submitted that the plaintiff was certain to obtain an extension of time, particularly if the reason that the proceedings had not been commenced was due to a lack of evidence. It was submitted that the fact that the plaintiff’s lawyers advised the plaintiff against settling the 2007 Claim suggests that they did not believe that the limitation period was material, let alone insurmountable.

187. I observe that ss 60C and 60E of the Limitation Act then provided:-

60C   Ordinary action (including surviving action)

(1)  This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2)  If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines.

60E   Matters to be considered by court

(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a)  the length of and reasons for the delay,

(b)  the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c)  the time at which the injury became known to the plaintiff,

(d)  the time at which the nature and extent of the injury became known to the plaintiff,

(e)  the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission,

(f)  any conduct of the defendant which induced the plaintiff to delay bringing the action,

(g)  the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(h)  the extent of the plaintiff’s injury or loss.

(2) In the application of this section to an application for an order under section 60C in respect of a cause of action that has survived on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.

…

188. Any extension to the limitation period was entirely in the discretion of the court on just and equitable grounds, subject to the matters listed in s 60E which the court was required to take into account. I cannot and do not find that the plaintiff was certain to obtain an extension of the limitation period as suggested by the defendant, although had evidence become available – at least looking retrospectively – he would have had a reasonable argument taking into account the s 60E factors. However, that Mr Twomey and Mr Wheelahan had advised the plaintiff not to settle his claim irrespective of the passing of the limitation period was likely based on a combination of factors: first, a belief that if evidence became available, prospects of an extension of time were good, second, a belief that further negotiations were possible and may have produced a better result and third, that contact with the media might either produce further evidence so that proceedings could be commenced in negligence and/or put further pressure on the defendant to settle the claim for more money.

189. With respect to Mr Twomey, the defendant submitted that his evidence was the most cautious, and that he is the most reliable of the witnesses called by the plaintiff. The defendant pointed to the fact that he had no independent recollection of advising the plaintiff about any limitation issue. Instead, he suggested that the “looming issue” was proving liability, which I accept. The defendant submitted that Mr Twomey’s advice to the plaintiff not to settle was consistent with Mr Twomey believing that the limitation issue could be overcome. In my opinion, this submission somewhat mischaracterises Mr Twomey’s evidence, who could only speak of his usual practice with respect to the limitation period, and discounts the collaborative mind of his instructing solicitor who I accept in 2007 and early 2008 had concerns about the limitation issue. In my view Mr Twomey would have been alive to a potential limitation issue, but I accept his evidence that the significant issue facing the plaintiff was proving Knox’s negligence.

190. With respect to Mr Wheelahan, the defendant submitted that he contradicted himself during cross-examination about his recollection of the March Letter, and that the Court should accept that he had no independent recollection of his state of mind at the time. The defendant accepted that Mr Wheelahan recognised that there was a potential limitation issue with the claim, which is why he wrote to the defendant in an attempt to resolve the issue. However, the defendant submitted that as there was no written communication about the limitation issue in evidence after the March Letter, the Court should draw the inference that, after the March Letter, Mr Wheelahan was satisfied that the limitation issue had been resolved. In my opinion, Mr Wheelahan remained concerned about the limitation issue because it had not been resolved to his satisfaction. However, like Mr Twomey, he was primarily concerned about proving negligence against Knox.

188. I observe that Mr Twomey and Mr Wheelahan were both independent witnesses in the sense that neither had any interest in the outcome. Both had been paid their fees many years ago. Both were candid about the limits of their memory.

189. With respect to the plaintiff and his father, the defendant submitted that neither characterised the limitation issue properly, which was not the expiry of the limitation period per se, but the need to apply to extend the limitation period if the defendant changed its position and raised the limitation defence. In my opinion, nothing turns on this distinction, although I observe that the defendant never departed from its assurance in the March Letter. Further, it was submitted that the plaintiff’s memory of 2008 is unreliable, as can be seen from the inconsistency in his evidence about his lawyer’s advice about whether he should settle his claim. I accept this submission.

190. The defendant submitted that the plaintiff’s evidence that the limitation issue was significant ought not to be accepted, as it was inconsistent with the evidence of his lawyers and the contemporaneous documents. Rather, the defendant contended that the real reason that the plaintiff settled was because he wished to resolve the claim quickly without resorting to litigation. In any event, the defendant submitted that Mr Twomey’s and Mr Wheelahan’s evidence ought to be preferred to that of the plaintiff and his father.

191. The defendant submitted that the documentary evidence establishes that it never denied liability for the abuse. It is not disputed that liability was not in issue at the 2007 settlement conference. There is no evidence to suggest that the position changed thereafter. The defendant also relied on the letter from Mr Wheelahan to the plaintiff dated 13 February 2007 in which he advised that a finding of liability against Knox did not present a hurdle to a successful claim. It was submitted that Mr Wheelahan’s evidence in cross-examination that this was clearly wrong should not be accepted when faced with the contemporaneous letter. As I have already said, I accept Mr Wheelahan’s evidence in this respect, as it is at odds with the other evidence adduced in the plaintiff’s case. Further, it was submitted that the plaintiff and Mr Wheelahan were aware that an investigation had been completed and a report produced regarding Mr Nisbett. This is established in several places in the evidence. Despite this, there is no evidence that the plaintiff, his father or Mr Wheelahan ever requested any informal production of documents from Knox. It was Mr Weeks’s uncontradicted evidence that he would have provided the plaintiff with the Wilson reports (dealt with at length in the Case Study), had he ever been asked. I add that there was no consideration given to an application for Preliminary Discovery which may well have yielded that very evidence.

192. With respect to the issue of the availability of the Ellis defence to the defendant, the defendant submitted that there is no evidence that it was ever raised, or something that was ever considered by the plaintiff’s lawyers in 2007 or 2008. The defendant submitted that it did not bear any onus to provide evidence to the contrary. As I have already stated, I accept this submission. In my opinion, the Ellis defence played no part in any decision made by the plaintiff.

193. The defendant submitted that setting aside the Settlement Deed would disturb the legal rights and obligations of the parties and is at odds with the public policy advanced in Pt 4 of the CPA encouraging the resolution of claims through mediation. It was submitted that it is also at odds with the importance of achieving the finality of litigation. The defendant submitted that it is important for a Court, in exercising its discretion under s 7D, to weigh and balance the interests of the defendant with those of the plaintiff. I accept that disturbing the rights and obligations of the parties by setting aside the Settlement Deed is an important factor in the exercise of my discretion in s 7D(3). However, the legislature clearly was alive to the possibility that in certain circumstances that might well occur, as is evident from the text of the statute itself. It is but one factor to take into account in the determination of what is just and reasonable in the circumstances.

194. The defendant submitted that it is not uncommon for a litigant to be in a position where they lack evidence prior to the commencement of proceedings. It was submitted that this was not due to any unfair or unreasonable conduct by the defendant. The defendant submitted that it had no obligation to disclose its internal investigations or any weak points in its defence, and that there was nothing improper about a settlement being reached through means of alternative dispute resolution without both sides completely revealing their hands. I accept this submission. I do not find that there was any unfair or unreasonable conduct on the part of the defendant at the time of the Mediation. The Mediation took place within the yoke of an adversarial process.

195. The defendant further submitted that there are risks in all litigation, and it would be surprising if the discretion in s 7D was exercised because a claimant chose to settle early and avoid the costs and other burdens that come with working up a case in circumstances where, 15 years later, it transpired that he might obtain more (and potentially damaging) evidence. The defendant submitted that the Court should infer that at the Mediation, the plaintiff chose the certainty of early settlement over the more uncertain process of litigation. I accept this submission.

196. With respect to the settlement sum, the defendant submitted that the comparison of a settlement amount before proceedings were commenced with sums that might be achieved in the event of a successful litigated claim is an unfair comparison, as there are many factors relevant to a pre-litigation settlement, such as the value of not having to prosecute the litigation to finality over a long period of time.

197. Further, the defendant submitted that it cannot be said that there was an unfair bargaining position, because the plaintiff was represented by competent lawyers who advised him against the settlement.

198. Finally, the defendant submitted that the plaintiff’s allegations about the conditions and conduct of the Mediation are disputed and, in any case, do not show that the Mediation or the Settlement Deed were affected by that alleged conduct. I accept that there may have been issues with the air-conditioning at the Mediation, but that in and of itself is not something I consider to have influenced or affected the plaintiff’s decision to settle his claim. In my opinion, the conduct of the Mediation is a “red herring” which has no bearing on the outcome of this application. The plaintiff himself made no real complaint about the conduct of the Mediation other than it was a difficult day, which was to be expected. I put the conditions and conduct of the Mediation to one side.

Consideration

202. Both parties agree that the Settlement Deed is an “affected agreement” within the meaning of ss 7C and 7D of the CLA, because the limitation period had expired for the negligence claim. Therefore, the real issue between the parties is whether it is just and reasonable to set aside the Settlement Deed pursuant to s 7D(2).

203. As I have said, I do not accept that any perceived difficulty in suing an unincorporated association in 2008 presented as a material legal barrier with respect to the 2007 Claim, and had no bearing on the settlement at the Mediation. None of the plaintiff’s witnesses mentioned it in either their oral or written evidence.

204. As to the limitation issue, there is contemporaneous documentary evidence to the effect that the plaintiff’s lawyers were, at least prior to the March Letter, concerned about the defendant’s position. On 23 May 2007, the plaintiff’s lawyers wrote to the defendant’s lawyers formally seeking their advice as to whether or not their client would seek to rely on any Limitation Act defence if commencement of litigation was delayed for a further period. On 14 June 2007, Ms Blacker wrote to say that she was seeking instructions on this point, which should take about a week. In reply to that letter, on 29 June 2007, and making reference to subsequent telephone discussions, the plaintiff’s lawyers wrote again to ask about the defendant’s position with regard to the limitation period. Many months later, on 17 December 2007, the plaintiff’s lawyers wrote to Ms Blacker again stating that they understood at the conclusion of the settlement conference, that no issue would be taken with the Limitation Act and asked for confirmation of the defendant’s position. Months later, the March Letter in fact confirmed the defendant’s position. There was no further correspondence on this issue. The defendant places significant weight on the March Letter, and suggested that I should not accept the evidence from the plaintiff’s witnesses to the effect that the limitation period remained a live issue, due to the lack of any contemporaneous documentary evidence after the March Letter. I have already said that in my view, the limitation issue was not a material consideration at the date of the Mediation.

205. There is no dispute that the fact that the claim was out of time and this constituted a legal barrier for the purpose of Pt 1C. However, in this case, I do not accept the plaintiff’s submission that the limitation period had any material impact on the settlement. I accept that it was a consideration in the sense that it was not yet entirely resolved, but I do not accept that it influenced the plaintiff’s decision to accept the defendant’s offer. If the limitation period had been a material factor, I cannot accept that both Mr Wheelahan and Mr Twomey – experienced legal practitioners both – would have advised the plaintiff against settlement. Furthermore, the limitation period with respect to the vicarious liability claim had yet to expire, and it remained a viable, although perhaps difficult, claim as against the defendant.

206. My understanding of both the plaintiff’s and his father’s evidence was that they were concerned about the limitation issue generally as it had been raised. They must have been aware of the content of the March Letter. In my opinion, what exercised the plaintiff’s mind at the time of the Mediation was his lawyers’ view that there was not enough evidence to prove Knox’s negligence. It was this that caused the plaintiff to come to the decision to settle, against the advice of his lawyers, and in circumstances when he did not want to go to court to further pursue the matter and when he wanted the certainty of a sum of money. He was not compelled to accept the defendant’s offer because of the legal technicalities of the limitation issue.

207. In my opinion the primary factor exercising the minds of the plaintiff, the plaintiff’s father, Mr Wheelahan and Mr Twomey, was the unavailability of evidence without which Mr Wheelahan could not certify a Statement of Claim alleging negligence. So far as the plaintiff’s motivation to settle was concerned, in my view this factor was the primary one. The plaintiff wished for the proposed litigation to end, so that he could get on with his life. In my opinion, the plaintiff’s decision to settle his claim, against legal advice, was driven by his perception that there was insufficient evidence to make out a claim in negligence against Knox, and his anxiousness to resolve his claim rather than have it litigated in court over time.

208. In my view, neither the Ellis defence nor the limitation issue influenced the plaintiff’s decision to settle at the Mediation. This is a factor which militates against the exercise of my discretion in s 7D(2).

The settlement sum – s 7D(3)(a)

209. It may be accepted that the amount paid to the plaintiff in 2008 was, in a general sense, not a very significant amount. There is no doubt that it is significantly lower than the full value of his present claim if he were to succeed on liability and causation of damages issues. In my opinion, $110,000 inclusive of costs in 2008, for an unlitigated claim, when looking at the vagaries of litigation and the toll that litigation would likely have on the plaintiff, including re-traumatisation (assuming the truth of his allegations), is a modest sum and one that represented a significant compromise.

Bargaining position of the parties – s 7D(3)(b)

210. As to the bargaining position of the parties, it is true that Knox as an institution would have been in a stronger position compared to a young and apparently vulnerable plaintiff. In any litigation, particularly in litigation against an institution, there is likely to be some perceived power imbalance. However, that is the case in most litigation, and it is a plaintiff who bears the onus of proof, which in and of itself is an imbalance. Such is the adversarial system in which the matter took place, for good or bad. Objectively, the imbalance was somewhat alleviated by the plaintiff having his father present and being represented by experienced counsel and a solicitor. In my opinion, no real complaint can be made by the plaintiff in this respect.

211. The bargaining position of the plaintiff was in fact substantially affected due to the lack of evidence held by the plaintiff as to the defendant’s prior knowledge of complaints made against Mr Nisbett. Both Mr Wheelahan and Mr Twomey believed that a claim against Knox in negligence could not be certified pursuant to s 347 of the LPA. This was a recurring theme in the evidence of the plaintiff and his witnesses. Notwithstanding that fact, the plaintiff’s lawyers advised him against settlement. He did not accept their advice. Neither was any request made for any report or investigation.

The conduct of the defendant’s legal representatives – s 7D(3)(c)

212. I do not accept that the defendant or its legal representatives acted in an improper manner during the course of negotiations leading to and at the Mediation. That Ms Blacker may have had a report of Mr Wilson is not to the point. She had no obligation to provide it to the plaintiff, as she was acting in the interest of her client in the discharge of her professional obligations. The situation may well have been different had there been a request for the report from Ms Blacker and a refusal to provide it.

Other matters – s 7D(3)(d)

213. As I have already said, in my opinion the conditions of the Mediation did not amount to impropriety on the part of the defendant, and were not said by any witness to have influenced the outcome. I do not accept that the defendant conducted itself in any unbecoming manner leading up to and during the Mediation, which was conducted by a respected retired Supreme Court judge.

Conclusion and orders

214. I am not persuaded that the circumstances of this case justify the exercise of the power pursuant to s 7D(2). In my opinion it would be unjust and unreasonable to set aside the Settlement Deed and disturb the legal rights and obligations of the parties contained in that document. The plaintiff’s motion should be dismissed.

215. I make the following orders:-

1. The plaintiff’s Notice of Motion is dismissed.

2. The plaintiff is to pay the defendant’s costs of the motion.

3. Proceedings number 2022/00165865 are dismissed.

4. The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement to some other costs order.

5. Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.

Amendments

02 May 2024 - amendment to [30].

Decision last updated: 02 May 2024