Jens v The Society of Jesus in Australia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2023 04717

BETWEEN:

PETER DAMIAN JENS	Plaintiff
v
THE SOCIETY OF JESUS IN AUSTRALIA LIMITED (ACN 628 008 979)	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2024
DATE OF RULING:	19 June 2024
CASE MAY BE CITED AS:	Jens v The Society of Jesus in Australia
MEDIUM NEUTRAL CITATION:	[2024] VSC 329

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LIMITATION OF ACTIONS — Limitation of Actions Act 1958 (Vic) ss 27QD, 27QE — Institutional abuse — Historical child sexual abuse — Settlement deeds — Application to set aside settlement deeds — Impact of legal barriers on plaintiff entering the settlement deeds — Settlement deed and variation deed — Plaintiff’s evidence of impact of legal barriers on entering settlement deeds — Determinative factor — Supportive factors — Whether plaintiff made election to not pursue economic loss — Just and reasonable to set aside settlement deeds in full — Trustees of the Christian Brothers v DZY [2024] VSCA 73 — Diocese of Sale v WCB [2020] VSCA 328 — Pearce v Missionaries of the Sacred Heart [2022] VSC 697.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gordon of counsel	Rightside Legal
For the Defendant	Ms R Kaye KC with Mr P Hamilton of counsel	Tony Hargreaves & Partners

TABLE OF CONTENTS

Introduction

Summary

Evidence

Settlement deed

Variation deed

Background

The abuse allegations
The plaintiff’s initial legal enquiries
Communication prior to execution of the settlement deed
Communication prior to execution of the variation deed
The ABB case and the defendant’s representations to the media
Timing of legislative amendments and the settlement deeds

Legislation and applicable principles

Is it just and reasonable to set aside the settlement deeds in whole or in part?

Did the legal barriers materially impact the plaintiff’s decision to enter into the settlement deeds?
Plaintiff’s submissions
Defendant’s submissions
Analysis

The plaintiff’s legal advice and representation; bargaining power
Plaintiff’s submissions
Defendant’s submissions
Analysis

Prospects of success and settlement amount
Plaintiff’s submissions
Defendant’s submissions

Analysis
The conduct of the defendant
Plaintiff’s submissions
Defendant’s submissions
Analysis

The plaintiff’s mental health
Plaintiff’s submissions
Defendant’s submissions
Analysis

Unfair prejudice
Plaintiff’s submissions
Defendant’s submissions
Analysis

Economic loss claim
Plaintiff’s submissions
Defendant’s submissions
Analysis

Conclusion – whether just and reasonable to set aside

HER HONOUR:

Introduction

The plaintiff, Peter Damian Jens, was sexually abused by a priest, Bradford, while he was a student boarder at Xavier College in Melbourne. In this proceeding, he claims damages from the defendant, The Society of Jesus in Australia. However, the plaintiff had previously released the defendant from claims relevant to the abuse. The release was recorded in a settlement deed on 22 August 2011, and a variation deed on 9 December 2016 (the ‘settlement deeds’). The defendant says that the settlement deeds bar the plaintiff from claiming damages.[1]
[1]Defence filed by the defendant on 13 December 2023 (‘defence’), [19]-[22], [27], [30].
The issue to be determined in this ruling is whether or not the settlement deeds should be set aside.
The plaintiff applies to set aside the settlement deeds in whole, pursuant to ss 27QD and 27QE of the Limitations of Actions Act 1958 (Vic) (‘LAA’). The defendant says that the plaintiff’s settlement deeds are not eligible to be set aside.[2] Alternatively, the plaintiff’s settlement deeds are not eligible to be set aside insofar as they relate to economic loss.[3] A further alternative submission from the defendant was that the part of the deed relating to a particular abuse incident in 1970 should not be set aside.
[2]Defence, [31].
[3]Defence, [32].

Summary

The question for determination is whether it is just and reasonable to set aside the settlement deeds, whether wholly or in part.
For the reasons outlined below, I find it is just and reasonable to set aside the settlement deeds.
Turning now to the evidence, which was solely by affidavit.

Evidence

In support of his application, the plaintiff relies upon his affidavit affirmed on 19 December 2023 (‘plaintiff’s affidavit’) and the affidavits of:
(a)his solicitor, Rachael Nevill, affirmed on 21 December 2023 (‘first Nevill affidavit’), 1 February 2024 (‘second Nevill affidavit’) and 27 February 2024 (‘third Nevill affidavit’);
(b)his brother, Paul Jens KC, sworn on 23 February 2023 (‘Jens KC affidavit’); and
(c)Michael Lombard, solicitor, sworn on 27 February 2024 (‘Lombard affidavit’).
The defendant relies upon the affidavits of:
(a)their solicitor, Peter Brown, sworn on 25 February 2024 (‘Brown affidavit’);
(b)their solicitor, Beth Marsh, affirmed on 7 February 2024 (‘Marsh affidavit’);
(c)Father Michael Head, archivist and formerly Head of Professional Standards, sworn on 23 January 2024 (‘Head affidavit’);
(d)Shane Collins, former counsel for the defendant, sworn on 24 January 2024 (‘Collins affidavit’);
(e)Simon Davies, Director of Professional Standards, sworn on 8 February 2024 (‘first Davies affidavit’) and 23 February 2024 (‘second Davies affidavit’); and
(f)Father Mark Raper sworn on 23 February 2024 (‘Raper affidavit’).
Both parties made written and oral submissions. Post-hearing, the parties provided further written submissions on a Court of Appeal judgment published on 23 April 2024: Trustees of the Christian Brothers v DZY (a pseudonym) (‘DZY’).[4]
[4][2024] VSCA 73 (‘DZY’).

Settlement deed

The settlement deed was executed on 22 August 2011 (the ‘settlement deed’).[5] The plaintiff settled his claim for $150,000 and the costs of his two sons boarding at Xavier College. It reads as follows:^[6]
[5]Affidavit of Peter Jens affirmed on 19 December 2023 (‘plaintiff’s affidavit’), [14]; Affidavit of Michael Head sworn on 23 January 2024 (‘Head affidavit’), [26].
[6]Exhibit “PJ-1” to the plaintiff’s affidavit, 9.
Deed of Release
This Release records the agreement between Peter Damian Jens of [address] and The Society of Jesus, Victoria, The Provincial, Father Steve Curtin SJ and Noel Bradford SJ.
1.Damian and The Society of Jesus, Victoria, Fr S Curtin SJ, Fr Michael Head SJ and Noel Bradford have voluntarily participated in acknowledging the events which occurred at Xavier College, Kew between Noel Bradford and Damian.
2.As part of their, being those mentioned above, dealing with the issues arising from this, The Society of Jesus, The Provincial, Fr Steve Curtin SJ and Fr Michael Head SJ and Damian have agreed to resolve all legal matters between them on:
A)to pay Damian $150,000 within 15 days of the signing hereof this release;
B) a confirmation by this release that The Society of Jesus have agreed to provide positions as students, whether it be day pupil or boarder, at Xavier College which is free of all tuition fees, compulsory fees and/or boarding fees if requested by Damian or the boys legal guardians for his two sons [names of sons] and;
C)recompense To Damian of his agreed legal costs this Release.
In consideration of the above, when the payment of the said sum of $150,000 by the representatives of The Society of Jesus and the observations of the other terms and conditions relating to the education of [plaintiff’s sons] referred to above, Peter Damian Jens hereby forever releases and discharges the Society of Jesus, Victoria and its Provincial, from time to time, and Noel Bradford from any suits, demands claims, or other action howsoever from any event, howsoever occurring prior to the signing of this agreement.
In consideration hereof the parties acknowledging the agreement.
[Signature of Peter Damian Jens]
[Signature of Michael Head on behalf of the Society of Jesus, the Provincial and Fr Bradford].

Variation deed

The plaintiff signed the variation deed on 9 December 2016 and the defendant on 30 January 2017 (the ‘variation deed’).[7] The plaintiff varied his prior settlement to accommodate his sons’ attendance at St Joseph’s College rather than Xavier College. It reads as follows:^[8]
[7]Plaintiff’s affidavit, [24]; Affidavit of Peter Brown sworn on 25 January 2024 (‘Brown affidavit’), [23].
[8]Exhibit “PJ-1” to the plaintiff’s affidavit, 14-17.
DEED OF VARIATION
A.Under the Deed of Release entered into between the Society and Peter dated 22 August 2011, the Society and Peter recorded their agreement to resolve all legal matters between them upon certain terms and conditions and Peter agreed to forever release and discharge the Society and its Provincial and Noel Bradford SJ from any suits, demands, claims or other action howsoever from any event, howsoever occurring, prior to the signing of the agreement (the Deed of Release).
B.Peter and [plaintiff’s former wife] are the parents of and legal guardians for their two sons; [plaintiff’s sons].
C.The Society and Peter, with the consent of Peter’s [plaintiff’s former wife], have agreed to vary their rights and obligations under clause 2(B) and to add a new clause 2(D) to the Deed of Release concerning the arrangements relating to the education and tuition fees of [plaintiff’s sons].
D.Both the Society, the Provincial, Peter and [plaintiff’s former wife] now enter this Deed of Variation to evidence their agreement regarding the variation of the respective rights and obligations of the parties to the Deed of Release.
THE DEED NOW WITNESSES AS FOLLOWS: -
1. Variation of Deed of Release
With effect from the date of this Deed of Variation, the Deed of Release is varied by: -
1.1deleting Clause 2(B) in its entirety and replacing it with the following new Clause 2(B):
B)confirmation by this release that The Society of Jesus has agreed to pay the tuition fees, compulsory fees and/or boarding fees relating to the education of [plaintiff’s sons] at St Joseph’s College, Geelong, for the duration of each child’s enrolment at St Joseph’s College, Geelong subject to and conditional upon the payment being made by the Society by bank cheque to St Joseph’s College, Geelong, upon production of an invoice from the school. With respect to the tuition and compulsory fees for [plaintiff’s son] which have already been paid by Peter and/or [plaintiff’s former wife] to St Joseph’s College, Geelong for the years 2014 and 2015, upon receipt of proof of payment, the Society will reimburse the payer of the tuition and compulsory fees for each of those years.
2.Except as amended in accordance with this Deed of Variation:
2.1The terms of the Deed of Release remain unchanged; and
2.2 The parties confirm the terms of the Deed of Release as varied by this Deed of Variation.
3.By signing this Deed of Variation, both Peter and [plaintiff’s former wife] agree and consent to the arrangements relating to the payment of the tuition fees, compulsory fees and/or boarding fees in their capacity as the parents of and guardians for [plaintiff’s sons] with respect to their enrolment and education at St Joseph’s College, Geelong as provided for in Clause 2(B) as varied by this Deed of Variation.
4.The parties agree to keep the terms and content of this Deed and the settlement effected by this Deed strictly confidential and will not directly or indirectly disclose the content or subject matter of this Deed unless compelled by law to do so or for the sole purpose of obtaining legal or accounting advice.
EXECUTED BY THE PARTIES AS A DEED.
SIGNED AS A DEED by FR BRIAN MCCOY SJ, PROVINCIAL OF THE JESUIT FATHERS FOR AND ON BEHALF OF THE SOCIETY OF JESUS IN VICTORIA ACN 004 238 948 in the presence of:
[Witness]
SIGNED AS A DEED by PETER DAMIAN JENS in the presence of:
[Witness]
SIGNED AS A DEED by [plaintiff’s former wife] in the presence of:
[Witness]

Background

The plaintiff was born in 1954 and is currently 69 years of age.
The plaintiff is the youngest of four brothers and has six sisters. He described his early life as generally positive, although his father was authoritarian.^[9]
[9]Exhibit “RN-1” to the affidavit of Rachael Nevill affirmed on 1 February 2024 (‘second Nevill affidavit’), 258.
The plaintiff attended Xavier College, residing there as a boarder from 1968 to 1972, when he was between 14 and 18 years old. When he commenced at Xavier College, three of his four brothers were also students there, including his brother Mr Jens (now KC).[10] The plaintiff liked school, did well academically and athletically, and made friends easily.[11]
[10]Affidavit of Paul Jens sworn 23 February 2024 (‘Jens KC affidavit’), [4].
[11]Exhibit “RN-1” to the second Nevill affidavit, 568.
Bradford was appointed to Xavier College by the defendant. He worked and resided at Xavier College from 1964 to 1979.[12] He held numerous roles including Second Division Prefect, teacher, Master, cricket coach and football coach.[13] He was known as ‘Brick’ and had a ‘large presence’ at the school.[14]
[12]Defence, [8]-[9].
[13]Amended statement of claim filed by the plaintiff on 1 November 2023 (‘ASOC’), [9].
[14]Affidavit of Michael Lombard sworn on 27 February 2024 (‘Lombard affidavit’), [10].
The plaintiff alleges Bradford sexually abused him on two occasions at Xavier College in 1968 and 1970, respectively.

The abuse allegations

The plaintiff alleges the following.
In or around 1968, while lying in his bed in a Xavier College dormitory, Fr Bradford put his hands under the plaintiff’s pyjama top, touched his stomach, moved his hands down into the plaintiff’s pyjama pants and fondled his genitals (the ‘1968 abuse allegation’).[15]
[15]ASOC, [10](a).
In or around 1970, Bradford took the plaintiff into his bedroom at Xavier College. The bedroom contained a desk and chairs. The plaintiff was wearing summer pyjama shorts. Bradford sat on a chair behind his desk, and directed the plaintiff to sit in another chair near the rear corner of the desk. Bradford moved close to the plaintiff, leant over and put his hands on the plaintiff’s legs. Bradford then moved his hands up the plaintiff’s legs and inside his pyjama shorts, then fondled the plaintiff’s genitals (the ‘1970 abuse allegation’).[16]
[16]ASOC, [10](b).
The plaintiff did not attempt to report the abuse to the police until 2016. He told a police member of the Sano Taskforce what had happened to him in general terms. The plaintiff ultimately did not make a formal statement, citing a lack of confidence in authorities given his previous experiences.[17]
[17]Plaintiff’s affidavit, [6]-[7].
In this proceeding, the plaintiff says that The Society of Jesus in Australia and the Australian Province of the Society of Jesus (the ‘defendant’)[18] appointed Bradford to Xavier College. The defendant says the Province appointed him.[19] The plaintiff says the defendant knew, or ought to have known, about the risk of child sexual abuse posed by Bradford, owed the plaintiff a duty of care and breached that duty of care to him by failing to prevent the abuse.[20]
[18]The plaintiff initially filed his statement of claim naming The Australian Province of the Society of Jesus as the defendant. The defendant filed a Form 85A pursuant to s 7 of the Legal Identity Of Defendants (Organisational Child Abuse) Act 2018 (Vic). The defendant nominated The Society of Jesus in Australia Limited (ACN 628 008 979) as the proper defendant to the plaintiff’s. Accordingly, the plaintiff filed his ASOC amending the defendant’s name.
[19]ASOC, [8]; Defence, [8].
[20]ASOC, [10].
The defendant admits the 1968 abuse allegation up to ‘lower body’ touching of the plaintiff but does not admit to the touching of the plaintiff’s genitals nor the 1970 abuse allegation.[21]
[21]Defence, [10].

The plaintiff’s initial legal enquiries

In or around 2008, the plaintiff told a friend about the abuse, who suggested that he speak to Michael McGarvie, a former partner at Holding Redlich. The plaintiff did so. Mr McGarvie did not provide him with advice, rather, he recommended that the plaintiff speak with Michael Lombard, a lawyer at the time at Holding Redlich.[22] It is unclear why Mr McGarvie directed the plaintiff to Mr Lombard. Mr Lombard’s work at Holding Redlich predominantly assisted people injured in transport accidents. He did very little work for survivors of institutional abuse, perhaps handling two or three enquiries over his career.[23]
[22]Plaintiff’s affidavit, [6]–[7].
[23]Lombard affidavit, [4]-[5].
The plaintiff recounts receiving ‘basic advice’ from Mr Lombard. Mr Lombard believes he would have said something concerning the applicability of the Ellis defence[24] and the statute of limitations to the plaintiff’s potential claim.^[25]
[24]The Ellis defence is a reference to Trustees of the Roman Catholic Church v Ellis & Anor (2007) 70 NSWLR 565; [2007] NSWCA 117 (‘Ellis’).
[25]Lombard affidavit, [10]–[12]; Plaintiff’s affidavit, [7].
Mr Lombard says the plaintiff did not wish him to take any further action and he received no further contact from the plaintiff.[26] The plaintiff approached the defendant on his own.^[27]
[26]Lombard affidavit, [14].
[27]Plaintiff’s affidavit, [7].

Communication prior to execution of the settlement deed

On or around 23 July 2008, the plaintiff telephoned the defendant. A file note records his initial conversation with Fr Peter Hosking SJ. Fr Michael Head, a Jesuit Priest, who was in charge of Professional Standards and phoned the plaintiff back the following day.[28] Fr Head offered to drive to Torquay, where the plaintiff resided, to meet with him.[29]
[28]Affidavit of Fr Michael Head sworn on 23 January 2024, [6]-[7] (‘Head affidavit’); Exhibit “MAH-1” to the Head affidavit, 3.
[29]Head affidavit, [8].
On or around 30 July 2008, Fr Head met with the plaintiff at a hotel in Torquay. Fr Head’s file note records the plaintiff giving him an account of the 1968 abuse allegation at this meeting (the ’30 July 2008 file note’). The plaintiff and Fr Head discussed options regarding his complaint.[30] The file note states:[31]
He has been in touch with [Michael McGarvie] and does not wish to go down that path and knows little about the process of Towards Healing. I said to him when he said he did not know what he wanted to do, that he could contact the police I could provide contact details for Towards Healing, or he could write directly to the Society with his experiences, concerns and desires. So far he is following the later suggestion.
Damien knows the previous case well and he knows of several other boys who (claim) were molested by [Bradford] over some years. He did not give names and I did not ask for them.
[30]Head affidavit, [9]-[10].
[31]Exhibit “MAH-1” to the Head affidavit, 4.
On or around 11 September 2008, Fr Head contacted the plaintiff to see how he was doing. Fr Head’s file note records that the plaintiff wanted another lunch with him.[32]
[32]Head affidavit, [12]; Exhibit “MAH-1” to the Head affidavit, 5.
Fr Head does not recall any correspondence being received, or there being any further contact between the plaintiff and the defendant, until 2011.[33]
[33]Head affidavit, [13].
On or around 4 May 2011, the plaintiff met with Fr Head and Fr Curtin at the defendant’s office in Hawthorn.[34] The plaintiff recalls, and the file note of the meeting records, that he requested an opportunity to speak with Bradford.[35]
[34]Head affidavit, [14]; Exhibit “MAH-1” to the Head affidavit, 6.
[35]Exhibit “MAH-1” to the Head affidavit, 6; Plaintiff’s affidavit, [7].

After this initial meeting, the plaintiff told his brother, barrister Mr Jens KC, about the abuse for the first time. Mr Jens KC was shocked to hear about what had happened, and recalled Bradford from his time at Xavier. The plaintiff was reluctant to go into much detail with him, though Mr Jens KC understood that Bradford had fondled the plaintiff.[36]
[36]Jens KC affidavit, [7].
The plaintiff told Mr Jens KC that he had already spoken with the defendant, including the Provincial, Fr Steve Curtin. The plaintiff said he had asked that Bradford attend the next meeting as he wanted to talk to him. The plaintiff asked Mr Jens KC to come along to the meeting for support. Mr Jens KC agreed to do so.[37]
[37]Jens KC affidavit, [8], [22]; Plaintiff’s affidavit, [7].
On 9 May 2011, the plaintiff and Mr Jens KC attended the defendant’s office in Hawthorn and met with Fr Curtin, Fr Head and Fr Andrew Bulleen SJ. Mr Jens KC recalls that the plaintiff made clear that his only request was to meet with Bradford. This is reflected in the defendant’s file note of the meeting.[38]
[38]Head affidavit, [15]; Exhibit “MH-1” to the Head affidavit, 7; Jens KC affidavit, [9]-[11].
On 10 May 2011, Fr Curtin spoke to the plaintiff, advising him that Bradford could not remember the 1968 abuse.[39] Fr Curtin reported this to Fr Head in an email dated 11 May 2011, noting that the defendant had considered compensation and that more details of the abuse were required (the ’11 May 2011 email’):[40]
I spoke with Damian last night after our Prof Stds meeting. I advised him that Noel did not have a clear memory of the incident involving Damien in 1968 and that we would not be able to go ahead with a meeting until you and I have met with Noel to put the accusation to Noel in its context and with greater detail about what Noel actually did etc…
On the compensation question, I mentioned a figure of 60K to Damian. He said he would prefer to leave that matter until later.
When you and I meet with Noel I would also like to clarify with him what he does remember and does admit about past misconduct. We will need to review files for descriptions of the incidents we know about.
[39]Head affidavit, [16].
[40]Exhibit “MAH-1” to the Head affidavit, 8-9.
On 24 May 2011, the plaintiff and Mr Jens KC met again with the defendant at Parkville (the ’24 May 2011 meeting’). Fr Curtin, Fr Head, and Bradford attended the meeting. Fr Head does not depose to meeting with Bradford before the 24 May 2011 meeting as Fr Curtain had foreshadowed in his email above.
At the 24 May 2011 meeting, Fr Curtain said to Bradford words to the effect of, ‘[the plaintiff] has asked to meet you. Do you have anything to tell him?’. Bradford was saying ‘a few things which were not a response’, when the plaintiff cut in and asked, ‘Why did you choose me?’[41] Bradford did not admit anything, but Fr Curtin then said, ‘come on Noel, we all know it happened.’ Mr Jens KC describes Bradford as changing demeanour. Bradford said that at the time he had other troubles in his life, was under emotional pressure, and did not know what had got into him.[42]
[41]Jens KC affidavit, [11].
[42]Plaintiff’s affidavit, [10]; Jens KC affidavit, [12].
The 24 May 2011 meeting lasted about 15 minutes or so. The plaintiff did not ask for money and there was no discussion about compensation.[43]
[43]Jens KC affidavit, [13].
Shortly after the meeting, Fr Curtin wrote to the plaintiff.^[44] The undated letter stated:
Thank you for coming to Park Drive and meeting with us last week. I realise how difficult it must have been for you to confront Noel Bradford knowing the experience you have had and the suffering that has followed in your life. It would not have helped you that Noel Bradford could not remember the incident but you handled it well. It was most beneficial that you had your brother Paul with you and his support no doubt is very important to you now and in the future.
After some reflection you might wish to contact me again and see if we can help you in some way move forward.
[44]Exhibit “MAH-1” to the Head affidavit, 11.
The plaintiff sought compensation after the 24 May 2011 meeting.[45]
[45]Head affidavit, [22].
On 17 June 2011, the plaintiff met with Fr Head at a hotel in Parkville.[46] Regarding compensation, Fr Head recorded the following in a file note addressed to Fr Curtin (the ’17 June 2011 file note’): [47]
We spoke about money at [sic] settled on a figure on 100K, which I accepted it in your name, as I believed it to be in the range of what you would think. I would have accepted 150 in this case too.
I suggested that he talk to his brother and get him to do a Deed of Release. I don’t know what will happen there but we will see about it. They will be in touch.
We parted on reasonable terms. He mentioned Michael Lombard (a friend and aggressive lawyer on this type of issue) and I said we were there to try help and not there to help Michael Lombard. We will see about that too.
[46]Head affidavit, [22]
[47]Exhibit “MH-1” to the Head affidavit, 12.
After this meeting, the plaintiff spoke to his brother about drafting a deed. Mr Jens KC provided the plaintiff with a paragraph of wording usually used in settlement agreements.[48] He deposes that he did not have any discussion with the plaintiff about legal entitlements, obtaining a psychiatrist report or calculations of loss.[49] Mr Jens KC recalls his brother stating that he been offered $90,000 by the defendant, though the plaintiff recounts that the defendant offered him $150,000.[50]
[48]Jens KC affidavit, [15].
[49]Jens KC affidavit, [14].
[50]Plaintiff’s affidavit, [13]; Jens KC affidavit, [15].
On 11 July 2011, the plaintiff emailed Fr Head attaching a draft settlement deed seeking $150,000 and positions for the plaintiff’s two sons to attend Xavier College as boarders, with all ancillary fees covered (the ’11 July 2011 email’).[51] The plaintiff wrote in his covering email:[52]
I did get a bit of help from a friend of my sister’s but in the end it was a little too legal and that was not quite what I was looking for. So… using a little bit of what she suggested and then getting Paul (brother) to give me the legal jargon I have put together this deed for your perusal and approval.
The situation of the boys in this may never evolve but it would be good for them to have the choice in future to be able to get a massive helping hand from The Jesuits, Xavier and all it has to offer. At this stage it would appear that the boys are headed to St Josephs in Geelong or maybe one of the other colleges available here but I think it is fair they have the opportunity if it so arises.
…I am most assuedly[sic] very, very grateful for all the time and compassion you have shown me over what was and is an extended scary time for me.
[51]Head affidavit, [23].
[52]Exhibit “MAH-1” to the Head affidavit, 13.
Fr Head confirmed with Xavier College that the plaintiff’s requests could be accommodated.[53] The defendant also agreed to pay the plaintiff’s legal costs relating to the release, but the plaintiff did not incur any legal costs.[54] As discussed above, the settlement deed was executed on or about 22 August 2011.[55]
[53]Head affidavit, [25].
[54]Plaintiff’s affidavit, [13]-[14]
[55]Head affidavit, [26].

Communication prior to execution of the variation deed

On or around 18 October 2013, the plaintiff reinstituted contact with the defendant. He ‘dropped in for a coffee’ with Fr Head. He told Fr Head that one of his sons was attending St Joseph’s College in Geelong (‘St Joseph’s College’) but his other son might like to attend Xavier College.[56] Both sons ended up attending St Joseph’s College.
[56]Head affidavit, [30]; Exhibit “MAH-1” to the Head affidavit, 20.
The plaintiff requested the defendant pay for his sons’ school fees at St Joseph’s College, including uniforms and textbooks. The plaintiff also sought money for counselling, plus another $50,000.00.[57]
[57]Plaintiff’s affidavit, [15].
On 2 December 2014, the defendant’s director of staff relations and professional standards, Michelle O’Brien, wrote to the plaintiff proposing a meeting facilitated by a mediator (the ‘2 December 2014 letter’).[58] Fr Jamie Calder, the Provincial Assistant for Professional Standards, would attend on behalf of the defendant, and the plaintiff could bring a support person or legal representative. The 2 December 2014 letter reads:[59]
Dear Damian,
Recently you contacted the Society of Jesus to request a variation to your deed of release in relation to the clause pertaining to the education of your two sons, [names of sons].
The Jesuits in principle support the commitment to assist with the educational costs of your sons’ secondary schooling and to this end we propose a preliminary meeting, facilitate by a trained mediator, to discuss your requirements in relation to the variation. The Jesuits would like to retain independent mediator, Mr. Shane Wall, who specialises in matters such as these.
If you’re in agreement with this approach, we could hold the preliminary meeting on Friday, December 12^th at 9:30am at a venue in Melbourne tbc. You would be welcome to bring a support person and/or a legal representative. Fr Jamie Calder SJ would attend to represent the Society of Jesus.
[58]Plaintiff’s affidavit, [15].
[59]Exhibit “PJ-1” to the plaintiff’s affidavit, 10.
The defendant also agreed to reimburse the plaintiff for 9 counselling sessions, subject to the provision of invoices.[60]
[60]Plaintiff’s affidavit, [16].
Mr Jens KC recalls being told by the plaintiff about this further meeting to be facilitated by a mediator. He wanted Mr Jens KC to come to the meeting for support; Mr Jens KC agreed. He did not probe the plaintiff further about the abuse or its impacts.[61]
[61]Jens KC affidavit, [16].
The defendant retained Shane Collins as counsel for the meeting.[62]
[62]Collins affidavit, [2].
On 3 December 2014, Fr Calder, emailed Ms O’Brien, Fr Head, Fr McCory, Mr Collins and representative of Xavier College (the ‘3 December 2024 Calder email’).[63] Fr Calder wrote:
[63]Exhibit “SGC-1” to the Collins affidavit, 4-5.
I wish to advise you that I met for 2 hours today with Damian Jens with regard to the variation of his deed of release. Specifically, we have been aware that Damian does not now wish to send his two youngest boys to Xavier. The projected value of the Deed for their tuition and boarding is thought to be approximately, $500,000. Some two or three years ago, in accord with the Deed, an immediate cash payment of $150,000 was made.
Damian believes that this original cash payment in no way compensated him for effects of Noel’s abuse on his longer term life as it has been lived. His measurement for thisis the success of all his siblings that he believes he has not enjoyed his own life due to the effects of the abuse. He wishes now to buy a house and get on with his life. He is insolvent as a result of now working last year and heavily in debt to family members. He attributes not being able to work last year to the effects of the abuse upon him. He indicates he will file for bankruptcy.
He wishes to vary the Deed in the following way:
-He believes that since the money is his anyway (even though earmarked for his two youngest boys’ education), through being a result of the abuse he suffered, a one of payment of $400,000 should be made to him.
-A second payment of $100,000 should be provided for his sons’ education.
-This would bring the total amount payed in this variation of the Deed to $500,000, the amount he estimates the Jesuits would have had to pay for the Xavier school fees.
…
It would seem then, that I have begun with Damian an informal negotiation arrangement. Not what I set out to do, but it may as well be done in this way, unless any of you have any further recommendations.
…
I do not believe that the Society has a monetary responsibility for Damian’s life to the level he wishes or believes he is entitled in the above monetary demand. A further payment may be in order, but not $500,000.
In response and later that day, Mr Collins advised the defendant that (the ‘3 December 2014 advice’):[64]
The [defendant] can either compel [the plaintiff] to be bound by the Deed of Release, or the Society can cancel the Deed of Release and renegotiate a new final settlement.
If the [defendant] chooses the latter course then [the plaintiff] has already received $150,000 which must be included in the new settlement.
Further, as [the plaintiff] has demanded that the Deed of Release be abandoned by both parties then the consequence of that abandonment means that [the plaintiff] has no right to demand that the [defendant] pay any money towards his sons education. As a matter of law, in a claim for compensation by an individual for sexual abuse, such compensation can only be applied to the claimant/victim. Any responsibilities a claimant may have to pay for his children’s education is not related to assessing the victims[sic] compensation.
[64]Exhibit “SGC-1” to the Collins affidavit, 3.
On 10 December 2014, Mr Collins further advised (the ’10 December 2014 advice’):[65]
The context of a mediated settlement entails that the [defendant] is properly informed about the alleged sexual assault, the injuries caused by the assault and full particulars of [the plaintiff’s] financial claim. All particulars of damages sought are provided prior to the mediation. Consequently, the Society shall be in an informed position to decide what is a fair and just compensation for [the plaintiff]. Presently, the [the defendant] has not been provided with such information.
[65]Exhibit “SC-1” to the Collins affidavit, 3.
On 22 December 2014, David Martin, as mediator, facilitated the meeting between the defendant, represented by Mr Collins and the plaintiff, supported by Mr Jens KC (the ’22 December 2014 mediation’).[66]
[66]Jens KC affidavit, [17].
The plaintiff says that discussions at the mediation ‘fell apart’ when the defendant suggested that he had spent all his previous settlement money on alcohol. The plaintiff got upset and left.[67] Mr Collins says that the defendant relied on the settlement deed on the basis that it constituted a binding agreement between the parties.[68] Mr Collins says that the plaintiff was represented by Mr Jens KC at the 22 December 2014 mediation.[69]
[67]Plaintiff’s affidavit, [18—[19].
[68]Collins affidavit, [9](a)-(c).
[69]Collins affidavit, [8].
The plaintiff was ‘fed up’ with negotiating directly with the defendant and decided to engage Angela Sdrinis Legal.[70]
[70]Plaintiff’s affidavit, [22].
The file of Angela Sdrinis Legal concerning the plaintiff contains a letter that records Angela Sdrinis’ opinion at the time (the ’22 February 2015 letter’):[71]
We confirm your instructions that you wish to pursue a further claim for compensation against the Jesuits for your abuse suffered by you whilst you were a boarder at Xavier.
We confirm that you face risk if proceedings are issued in your matter as you have previously agreed to a binding settlement and indeed we confirm that even if your settlement could be set aside, it is our view that the settlement you achieved is in excess of what a court of law would be likely to award you.
….
We confirm that if you wish us to act for you, we will contact the head of the Processional Standards and request that the Jesuits enter into further negotiations regarding a review of the settlement previously reached by you. If they refuse, we confirm that we would be unable to take further action on your behalf and we would close your file without charge.
[71]Exhibit “PAB-1” to the Brown affidavit, 1-5. This letter is the subject of an evidence ruling: [2024] VSC 330. In that ruling, it is referred to as the ‘Sdrinis letter’.
Although there is no evidence the plaintiff received the letter, I am satisfied that he received advice from Angela Sdrinis Legal consistent with the opinion expressed in the letter, namely that it was risky to issue proceedings. This is for two reasons. First, he acted accordingly. That is, he did not issue proceedings but sought to further negotiate with the defendant. Second, the plaintiff’s own evidence is that he believed that he had given up his legal rights under the settlement deed.[72]
[72]Plaintiff’s affidavit, [25].
On 17 April 2015, Peter Brown, director of Tony Hargreaves and Partners Lawyers, received instructions from Michelle O’Brien on behalf of the defendant. The defendant sought advice relating to the negotiations to vary the settlement deed.[73]
[73]Brown affidavit, [7].
On 22 April 2015, Mr Brown wrote to the defendant providing preliminary advice, citing concerns about the financial uncertainty of providing payment for any given school and the need to involve the plaintiff’s former wife as the parent with full-time care of their sons.[74] Mr Brown stated:
First, the [defendant] may be content to pay the cost of Mr Jens’ children attending a school such as St Josephs’s which is approximately $5,500 per annum. However, the [defendant] may not be prepared to pay the cost of one or both children attending an independent school where the cost could be $25,000 per annum, per child (for example, Geelong College). For children currently aged 11 and 13 years, this could equate to an ex gratia payment of $250,000. This on top of the original payment Mr Jens received in the sum of $150,000 .
We understand that the allegations that Mr Jens made against Fr Noel Bradford SJ were that sometime in the 1970s, the accused got into bed with him one night, touched his chest, and moved his hands down “to the lower body area”. Such an allegation, without any further detail, does not, in our view, warrant a settlement payment of such a magnitude.
Secondly, you have advised us that Mr Jens’ ex-wife has the full-time custody of the children. The mother of Mr Jens’ children will obviously have a significant say in where her children are to be educated. We understand that the [defendant] has had no discussions with Mr Jens’ ex-wife about his matter. She may not wish to enter into discussions with you about the education of her children or, alternatively, she may use the opportunity to seek a more costly alternative than presently contemplated.
The intention of the parties when entering into a Deed of Release and Settlement is to abandon their future claims against the other party, often for an agreed sum. Here, Mr Jens is seeking to renegotiate the terms of the original Deed of Release and to a very significant extent.
These are only my preliminary thoughts and subject to reviewing the Deed.
[74]Exhibit “PAB-1” to the Brown affidavit, 8-10.
Further to being provided the settlement deed, Mr Brown wrote to the defendant confirming their instructions and his advice on 27 April 2015:[75]
I confirm your advice that notwithstanding the fact that the Deed of Release entered into with Mr Jens is limited to providing his children with free tuition and boarding at Xavier College, the Society has agreed to extend this offer to pay for the current fees for Mr Jens’ sons attending St Josephs. In this regard, I confirm that it is important you secure the agreement of the children’s mother to any arrangement relating to payment of school fees and the fees are paid to the school. In this regard, I confirm that you will now contact Mr Jens to reach agreement on these arrangements including securing the agreement of his ex-wife.
[75]Exhibit “PAB-1” to the Brown affidavit, 11-12.
On 29 April 2015, Fr Calder wrote to the plaintiff informing him that the Professional Standards Consultative Panel had refused his request for $50,000 but would continue to pay for his counselling (the ’29 April 2015 email’).[76] The email also stated that the defendant supported varying settlement deed to facilitate payment of his sons’ school fees. However, they required the consent of the plaintiff’s former wife. The email stated:[77]
Firstly, the Society continues to be in principle supportive of varying the original Deed Of Release in relation to [names of sons] secondary education. To this end we will backpay any Secondary Education fees already incurred in relation to [son’s name]. We acknowledge that [son’s name]’s secondary schooling may take place at an institution other that St Joseph’s where [son’s name] currently studies.
In order to enact this variation in the Deed we require her co-agreement of your former wife as the legal custodian of your sons. As such could you ask her to contact either myself or Michelle O’Brien…
Secondly in relation to your request for further funds of up to $50,000, I am sorry to inform you that the Panel has declined this request. We will continue to assist financially in terms of any further counselling.
[76]Plaintiff’s affidavit, [20].
[77]Exhibit “PJ-1” to the plaintiff’s affidavit, 11.

On 12 May 2015, Fr Calder wrote to the plaintiff again, stating that his former wife had consented and that they would draft a Memorandum of Understanding to deal with the variation (the ’12 May 2015 Calder email’).[78] The letter stated:[79]
I have just spoken now with [name of ex-wife] and she has confirmed that she will support an agreement between yourself and the Society of Jesus in relation to [names of sons] secondary education. Contrary to what I wrote previously, this arrangement that we would like to make with you will not take place as a deed of variation of the original Deed of Release, but rather as a Memorandum of Understanding between yourself and the Society. I will now get this drawn up by our lawyers for your approval and signature…
[78]Plaintiff’s affidavit, [21].
[79]Exhibit “PJ-1” to the plaintiff’s affidavit, 12.
The same day, Mr Brown emailed Fr Calder stating that he would proceed to draft a variation deed, subject to Fr Calder confirming that money be paid directly to St Joseph’s College.[80]
[80]Exhibit “PAB-1” to the Brown affidavit, 15.
On 19 May 2015 the defendant wrote to the plaintiff informing him that they had decided a variation deed was more appropriate and enclosed a proposed variation deed drafted by Mr Brown (the ‘proposed variation deed’):[81]
Upon legal advice in relation to the Deed of Release, the Society of Jesus determined that the best way to go forward with out commitment to [names of sons] secondary schooling is to create a Deed of Variation. I attach this variation for your feedback.
[81]Exhibit “PJ-1” to the plaintiff’s affidavit, 13; Brown affidavit, [9].
Mr Brown did not hear further from the defendant for some time, and he assumed that the parties reached no agreement.^[82]
[82]Brown affidavit, [9].
On 29 April 2016, Ms Sdrinis wrote to Simon Davies, the new Director of Professional Standards for the defendant (the ’29 April 2016 letter’).[83] The letter stated:[84]
[83]Brown affidavit, [12]-[13].
[84]Exhibit “PAB-1” to the Brown affidavit, 29-30.
We advise we act on behalf of the above named who has requested that we contact you with a view to finalising matters between himself and Xavier College and in particular with respect to the issue of the payment of school fees for his twos which was the subject of a Deed of Variation sometime in 2015. We understand that these settlements were negotiated by your predecessor Rev James Calder.
Our client seeks to resolve the agreement to pay his son’s school fees by way of an upfront lump sum payment. The reasons for this request are as follows.
-The nature of our client’s mental health issues (which we say are related to the alleged abuse which was the subject of his initial claim and for which he received compensation) are such that he struggles to deal with day to day matters and it appears that notwithstanding the agreement to pay his sons’ school fees, our client has not been able to sufficiently organise himself to forward invoices so that payment can be affected;
-Ongoing contact with anyone who is connected to Xavier College which would be required with respect to dealing with the matter of school fees on a term by term/year by year basis causes our client distress and exacerbates his mental health issues;
-We note that there was an initial offer to cover school fees for the two boys to board at Xavier but that our client’s distrust of Xavier was such that he could not contemplate sending his boys to the school hence the matter was resolved on the basis that the boys fees at St Joseph’s would be paid. Our client has calculated that over the relevant period tuition and boarding fees for both boys at Xavier would total $481,210 plus “Extras” whereas fees at St Joseph’s at current rates total $64,872. This is a saving to Xavier College/the Society of Jesus of over $400,000;
We are instructed that our client was not legally represented in the initial settlement of his claim. We note that our client was supported by his brother Paul Jens of Counsel when the further settlement was negotiated but that he was not legally represented at the conference.
…
On 9 May 2016, Mr Davies spoke to Mr Brown about the correspondence from Ms Sdrinis (the ‘9 May 2016 advice’).[85] Mr Brown advised Fr Calder that matter should be finalised by the payment method outlined in the proposed variation deed, and further that:[86]
xI noted that Damian Jens was assisted by his brother, Paul Jens, at the time of the original settlement. My notes indicate that Paul Jens attended the meeting when the case was originally settled in 2011. Paul Jens is a barrister. It is therefore not correct to say that Damain Jens was not legal represented in relation to the initial settlement.
The initial settlement appears to have been adequate. [The plaintiff] received $150,000.00 in the context of an allegation where Mr Jens says Fr. Noel Bradford got into bed with him one night, touched his chest and moved his hands down “to the lower body area”. It therefore appears that the allegation was limited to inappropriate touching.
[emphasis original]
[85]Exhibit “PAB-1” to the Brown affidavit, 31-32.
[86]Exhibit “PAB-1” to the Brown affidavit, 31-32.
On 3 July 2016, Ms Sdrinis wrote to Fr Calder, further to a phone discussion on 9 May 2016 (the ‘3 July 2016 letter’). The letter referred to Fr Calder’s agreement to pay for school fees including uniforms, textbooks and school trips. The 3 July 2016 letter annexed receipts relating to the plaintiff’s sons’ education incurred to date. Ms Sdrinis also sought the plaintiff’s legal costs, assessed at $2,200.[87]
[87]Plaintiff’s affidavit, [23]; Brown affidavit, [13]; Exhibit “PAB-1” to the Brown affidavit.
On 12 July 2016, Mr Brown wrote back to Ms Sdrinis, outlining a history of the plaintiff’s matter and enclosing the proposed variation deed (the ’12 July 2016 letter’). Mr Brown stated:[88]
… the Society has complied fully with its obligations under the settlement reached in 2011.
…
Notwithstanding Mr Jens’ request going beyond the terms of the Deed entered into in 2011, the Society indicated it was willing to consider a variation to the original settlement as a gesture of goodwill in view of your client’s decision not send his children to Xavier College.
[name of ex-wife] has the full time care of [names of sons], who both live with her. For this reason, the consent of your client’s ex-wife was sought to the variation and [name of ex-wife] indicated that she was willing to sign a Deed of Variation recognising the arrangement for payment of [names of sons] school fees.
A Draft Deed of Variation as prepared and provided for signing by Mr Jens and [name of ex-wife]. We attach a copy of the draft Deed for your attention. You will see that the Deed provides for a bank cheque to be provided directly to the school upon production of an invoice. This was and remains our client’s preferred position in order to ensure that the payment of the school fees is made to the benefit of [names of sons].
The Society remains committed to proceeding with the Deed of Variation provided to Mr Jens last year. As you will appreciate, a full and final settlement was entered in relation to this matter in 2011 and our client’s agreement to revisit the issue of school fees has been undertaken in a spirit of goodwill and co-operation notwithstanding the fact that no formal obligation exists to extend the terms agreed to in 2011. Mr Jens has already been paid a substantial settlement which he accepted and for which he provided a release in 2011. In the circumstances, it is appropriate that the parties should otherwise bear their own costs and seek to finalise these arrangements without further delay.
[88]Exhibit “PAB-1” to the Brown affidavit, 46-47; Exhibit “PJ-1” to the plaintiff’s affidavit, 23.
On 21 September 2016, Ms Sdrinis wrote directly to Mr Davies, reiterating the plaintiff’s position that funds for the boys’ schooling, past and future, be paid into his former wife's bank account. Further, that the cost of future counselling sessions for the plaintiff be paid directly to the plaintiff’s counsellor. Ms Sdrinis stated that the plaintiff maintained that the defendant pay for legal costs of $2,200.[89]
[89]Brown affidavit, [17]; Exhibit “PAB-1” to the Brown affidavit, 52-53.
On 3 October 2016, Mr Brown wrote to Ms Sdrinis, referring to the 12 July 2016 letter and seeking a substantive response.[90]
[90]Brown affidavit, [17]; Exhibit “PAB-1” to the Brown affidavit, 60.
On 9 October 2016, Ms Sdrinis wrote to Mr Brown apologising for overlooking the 12 July 2016 letter and stating that she would now seek instructions regarding the proposed variation deed.[91]
[91]Brown affidavit, [18]. Exhibit “PAB-1” to the Brown affidavit, 61.
On 14 October 2016, Ms Sdrinis wrote to Mr Brown noting that the proposed variation deed did not incorporate matters relating to uniforms, textbooks, the potential that the plaintiff’s son may attend another school, or to the plaintiff’s counselling (the ’14 October 2016 letter’). Ms Sdrinis ‘urged’ Mr Brown to revisit the notes made by Fr Calder in meetings with the plaintiff. She requested that Mr Brown forward an amended variation deed document.[92]
[92]Brown affidavit, [19] Exhibit “PAB-1” to the Brown affidavit, 64-65.
Mr Brown obtained further instructions from Fr Calder and the defendant determined that the proposed variation deed be amended to accommodate the plaintiff’s requests.[93] On 18 October 2016, Mr Brown wrote to Ms Sdrinis, enclosing a revised variation deed. The revised variation deed incorporated items outlined in her 14 October 2016 letter including, reimbursement of the plaintiff’s school-related costs and the provision of ongoing counselling through Carelink.[94]
[93]Brown affidavit, [20]; Exhibit “PAB-1” to the Brown affidavit, 68-75.
[94]Brown affidavit, [20]; Exhibit “PAB-1” to the Brown affidavit, 76.
On 9 December 2016, the plaintiff and his former wife signed the variation deed. On 30 January 2017, Fr McCoy signed the variation deed on behalf of the defendant. On 1 February 2017, Mr Brown forwarded the executed variation deed to Ms Sdrinis.[95]
[95]Brown affidavit, [23].
Mr Brown deposes that the total compensation paid by the defendant to the plaintiff is $260,963.42, comprising of the settlement deed sum of $150,000.00, psychological counselling for the plaintiff of $3,517.50, and school expenses for the plaintiff’s sons of $107,445.92.[96]
[96]Brown affidavit, [35].
Turning now to another case, and the defendant’s public stance regarding actions against them for childhood sexual abuse.

The ABB case and the defendant’s representations to the media

In or around 2002, a plaintiff by the pseudonym ‘ABB’ commenced a proceeding for damages relating to childhood sexual abuse. He named three defendants, including Bradford and The Society of Jesus in Victoria (another Jesuit entity).[97] Mr McGarvie of Holding Redlich represented ABB.[98] The Society of Jesus in Victoria filed its defence, denying liability on the basis that it was not responsible for the employment, control, management, or supervision of Bradford or the other personally named defendant, as its only relevant function was to hold property on trust for the religious order of The Society of Jesus in Victoria.[99] ABB made an application for discovery from The Society of Jesus in Victoria to identify a proper defendant. Orders were made compelling the Provincial at the time to discover documents relevant to the identity of the proper defendant. The Society of Jesus in Victoria appealed the orders.[100]
[97]Affidavit of Fr Mark Raper sworn on 23 February 2024 (‘Raper affidavit’), [3].
[98]Raper affidavit, [4].
[99]Raper affidavit, [7].
[100]Raper affidavit, [8].
The defendant accepts that the ABB proceeding was an example of the Jesuits relying on the Ellis defence.[101]
[101]Raper affidavit, [8].
Fr Raper’s evidence is that he was determined to take a different approach to handling child abuse claims when he became Provincial for The Society of Jesus in Australia on 10 December 2002.[102]
[102]Raper affidavit, [10].
In July 2003, Fr Raper participated in a television interview on The 7:30 Report (the ‘ABC interview’), during which he made statements to the effect that the defendant was reviewing their legal approach to complaints, would obtain alternative legal advice and would meet with complainants in person to pursue a pastoral approach in response to child sexual abuse claims.[103] The ABC interview occurred after abuse survivor Lucien Leech-Larkin came forward about his experience attempting to litigate and negotiate with the defendant. An article dated 7 July 2003 published in The Age newspaper reported the ABC interview and Fr Raper’s statements that the defendant would look to follow different legal advice for Mr Leech-Larkin’s case and others.[104]
[103]Raper affidavit, [11]: Exhibit “MR-1” to the Raper affidavit, 23-28.
[104]Exhibit “MR-1” to the Raper affidavit, 29-30.
On 10 July 2003, Mr McGarvie wrote to David Poulton of Minter Ellison, solicitor for the defendant, further to a phone call the day prior (the ’10 July 2003’) letter.[105] Mr McGarvie wrote:[106]
…the Plaintiff would be willing to accept a written undertaking by the Society of Jesus in Victoria that, without admitting liability, it will provide a written guarantee to the Plaintiff that it will pay any judgment entered against either or both the First and Second Defendants in this case.
[105]Raper affidavit, [13[.
[106]Exhibit “MR-1” to the Raper affidavit, 31.
On 11 September 2003, Mr McGarvie wrote to Mr Poulton, (the ‘11 September 2003 letter’) stating:[107]
… We confirm you are instructed to offer [redacted] to settle this claim. We are instructed to reject this offer.
…
We are instructed to counter offer [redacted] in full and final settlement. This is on the basis that the Provincial has indicated he would take a different approach to this litigation, and reflects our client’s calculations of his loss.
[107]Exhibit “MR-1” to the Raper affidavit, 35.
On 31 October 2003, Mr Poulton wrote to Mr McGarvie undertaking to provide a written guarantee to ABB that the defendant would pay any judgment entered against either Bradford or the other personally named defendant, and the defendant would not rely upon the time limitation barrier (the ’31 October 2003 letter’).[108] Mr Poulton wrote:[109]
We confirm that our client’s instructions are to seek to resolve the technical issues regarding the identity of the ‘school authority’ which have complicated the case to date.
We are instructed to put a proposal which involves the following:
1.The Provincial of the Society of Jesus, Father Mark Raper SJ, will give us instructions to provide a letter, undertaking on behalf of the Society of Jesus in Victoria that it will meet any judgement for compensatory damages obtained by the plaintiff against either the first or second defendants in respect of the matters which are the subject of the current proceeding. We enclose a draft of the form of the letter of undertaking we have in mind.
…
5.The defendants would not rely upon any defence based on the Limitations of Actions Act.
[108]Raper affidavit, [12].
[109]Exhibit “MR-1” to the Raper affidavit, 36-37.
The proceeding resolved and a settlement deed was executed on 11 June 2024.[110]
[110]Exhibit “MR-1” to the Raper affidavit, 39-44.
As to Mr Leech-Larkin’s matter: Fr Raper says he intervened in it, the defendant ceased reliance on the Ellis defence and the parties resolved the matter.[111]
[111]Raper affidavit, [17].
Fr Raper says that:[112]
My interview on the 7:30 Report reflected my decision on behalf of the Province, in a very public way, to no longer rely upon what is now known as the Ellis Defence and to meet with complainants in person to pursue a pastoral approach in response to their experiences.
[112]Raper affidavit, [11].
Both parties made submissions regarding ABB’s matter and the 7:30 report interview, outlined below.
Turning next to the legislative changes.

Timing of legislative amendments and the settlement deeds

I adopt the Court of Appeal’s summary in DZY:[113]
In a series of enactments, the Victorian Parliament moved to address problems facing those who claim to have suffered personal injuries as a result of physical or sexual abuse while a minor (‘child abuse’), perpetrated on them long ago by persons acting under the auspices of an unincorporated association. Relevantly, those enactments were to the following effect:
(a)from 1 July 2015, to remove any limitation period for an action founded on the personal injury to a person resulting from child abuse;
(b)from 1 July 2018, to require the nomination or appointment of an entity to act as the proper defendant on behalf of an unincorporated non-government organisation in child abuse cases and bear the liability of the unincorporated organisation — in other words, to overcome the Ellis defence; and
(c)from 18 September 2019, to provide that an action for personal injury resulting from child abuse may be brought on a previously settled cause of action (as defined) by allowing a plaintiff to apply to the court to set aside settlement agreements on the basis that it is ‘just and reasonable’ to do so.
[113]DZY, [10](a)-(c).
Here, the settlement deed was made before the legislative amendments. The parties executed the variation deed after the removal of the limitation defence, but before the removal of the Ellis defence. However, as discussed below, it is evident from the variation deed, the correspondence leading up to it, and the advice each party received from their solicitors, that the parties regarded themselves as bound by the earlier settlement deed. There is no evidence that the removal of the limitation period had any impact on the variation deed.

Legislation and applicable principles

Sections 27QA(2) and 27QD of the Act allow a plaintiff to apply to the Court for an order setting aside a settlement agreement relating to a previously settled cause of action.
Section 27QE sets out the Court’s powers in respect of previously settled causes of action:
Court’s powers—previously settled causes of action
(1)On an application under section 27QD or otherwise in a proceeding on an action referred to in section 27QA(2), the court, if satisfied that it is just and reasonable to do so—
(a)may make an order setting aside the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action, whether wholly or in part; and
(b)may make any other order that it considers appropriate in the circumstances.
(2)In hearing and determining any action to which this Division applies on a previously settled cause of action, the court, if satisfied that it is just and reasonable to do so—
(a)when awarding damages in relation to the action, may take into account any consideration (whether monetary or non-monetary) paid, payable or given or to be given under—
(i)a settlement agreement set aside under this section; or
(ii)any other agreement related to the settlement that has been set aside under this section; and
(b)when awarding costs in relation to the action, may take into account any amounts paid or payable as costs under—
(i)a settlement agreement set aside under this section; or
(ii)any other agreement related to the settlement that has been set aside under this section.
In DZY, The Court of Appeal emphasised the ‘centrality of the actual influence’ of the time and legal barriers in considering ’whether it is just and reasonable to set aside a settlement agreement’.[114] The Court of Appeal stated that ‘in an ordinary case’, one of those barriers ’would play some part in explaining why the claimant entered into the settlement agreement’.[115] Moreover:[116]
If a finding was made that one or other of those legal barriers had a material impact on the claimant’s decision to settle his or her claim, a cogent ground would exist to conclude that it was just and reasonable to set the settlement aside. Of course, being fair to both sides, it would be necessary to consider the effect on and any prejudice to the respondent in deciding whether to set it aside. If no finding was made that either legal barrier had such an impact, it is doubtful that any cogent ground would exist to conclude it was just and reasonable to set the settlement aside.
[114]DZY, [109].
[115]DZY, [110].
[116]DZY, [110].

As to what constitutes just and reasonable, the Court of Appeal stated the following principles in DZY:[117]
It is important to pay proper regard to the fact that Parliament has not sought to define the factors that are to be taken into account in determining whether it is just and reasonable to set aside a judgment or a settlement. Nevertheless, the text alone is not the only measure by which the statute is to be construed. Bringing context and purpose into the process of construction, it is equally important, in our view, to pay proper regard to the nature of the power being exercised and the particular mischief that the exercise of that power was intended to remedy. As explained, we take the view that the exercise of the power under these sections is not discretionary. That is of some importance. The mischief to be remedied was the unfairness to claimants of having judgments entered or settlements made when their legal rights or bargaining power were constrained by one or both of two specific legal obstacles to their claims.
We do not deny that, other than the actual influence of those legal obstacles, there could be additional factors that might legitimately be taken into account. Potentially those factors might include, for example, prospects of success (that is, that the claimant could do better than he or she had previously done by the settlement); the respondent’s conduct in the settlement process; unequal bargaining power; any feelings of guilt or shame (compounded or not by the burden of giving evidence and being subject to cross-examination); and (as noted) prejudice to the respondent.
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.
[117][111]-[113] (citations omitted).
I adopt these principles.

Is it just and reasonable to set aside the settlement deeds in whole or in part?

First, I will turn to the factor that is central to the determination of this question.

Did the legal barriers materially impact the plaintiff’s decision to enter into the settlement deeds?

Plaintiff’s submissions

At the time of negotiating the settlement deed, the plaintiff’s claim was subject to the time limitation barrier and the legal identity barrier. There is extensive evidence before the Court that both of these barriers materially influenced how the plaintiff dealt with the defendant, the sum of compensation sought, and entering into the settlement deed.
The advice the plaintiff received from Holding Redlich was that he could not sue the defendant due to the legal barriers. In his affidavit, Mr Lombard, who briefly advised the plaintiff in 2007 or 2008, deposes that he told the plaintiff that there were legal difficulties in making a legal claim against the defendant. Mr Lombard deposes that although he cannot recall the detail of the conversations, he would have spoken about the time and legal barriers.
The plaintiff’s evidence is that when he agreed to the settlement deed, he knew it was impossible to sue the defendant because of their organisational structure. He attributes the source of this knowledge to Mr Lombard, his brother Mr Jens KC or a friend of his sister’s.[118]
[118]Plaintiff’s affidavit, [12].
The plaintiff also knew that, given his abuse occurred 40 years ago, he was out of time. As such, he ‘knew that asking for some money was the only possible way of getting some compensation’.[119] The plaintiff was aware of these barriers when he met with the defendant.
[119]Plaintiff’s affidavit, [13].
The plaintiff’s evidence is that because the barriers existed, he knew the only way to get compensation was to ask for it. He was engaged in glorified begging. The plaintiff’s evidence is that when he negotiated and entered into the settlement deed, he had no idea what his claim was worth and the settlement sum seemed modest.
Given these legal barriers, it was incumbent upon the defendant to expressly and explicitly remove the legal barriers from consideration. This is the only way the defendant could have been sure that they did not bear on the plaintiff’s decision to accept compensation.
The variation deed was merely an extension of the circumstances of the settlement deed. While it was executed after the removal of the time limitation barrier, the negotiations were conducted on the basis that the plaintiff had no legal rights by virtue of the settlement deed.
There was no discussion as to how the removal of the time limitation barrier might impact his compensation. The legal identity barrier was still in place. The variation deed discussions did not include reference to any common law principles of compensation or the possibility of litigation. Instead, the negotiations were framed as a goodwill gesture by the defendant to accommodate the changes to the schooling of the plaintiff’s sons.
The defendant’s own evidence is that they conducted negotiations with the plaintiff without raising the legal barriers by accepting the proposal outlined in the settlement deed presented to them by the plaintiff himself.[120] Concerning Fr Raper’s evidence that he had determined the defendant would no longer rely on the Ellis defence: the new Provincial should have conveyed that position to the plaintiff.
[120]Affidavit of Simon Davies sworn on 23 February 2024 (‘second Davies affidavit’), [15].
The defendant never took the barriers off the table during negotiations with the plaintiff. In turn, the plaintiff settled his claim for plainly less than it was worth relative to the litigated claims at the time, and less than compensation deemed to be ‘adequate by today’s standards’.[121]
[121]Victoria, Parliamentary Debates, Legislative Assembly, 15 August 2019, 2696 (Luke Donnellan, Minister for Child Protection, Minister for Disability, Aging and Carers).
The defendant knew they needed to take the barriers off the table for a proper settlement to be negotiated. That is how Fr Raper, via the defendant’s solicitors, conducted the settlement negotiations with ABB and Mr Leech-Larkin: by express written undertaking to their solicitors that the legal barriers would not be relied upon.
The defendant could not assume that the plaintiff was aware of Fr Raper’s public statements. Further, the Ellis decision had occurred since such representations, impacting the legal landscape and necessitating additional clarification of the defendant’s position.
The variation deed shows that the defendant continued to insist on the validity of the settlement deed. This is also reflected in the correspondence from the defendant to the plaintiff’s solicitor. Therefore, the legislative change subsequent to the settlement deed is immaterial. The factors that influenced the plaintiff to sign the settlement deed continued to affect him as he knew he had given up his rights under the settlement deed.

Defendant’s submissions

The defendant says there is no clear or specific evidence that the plaintiff entered into inadequate settlement deeds because of the legal barriers. The onus is on him to adduce specific and clear evidence showing that the barriers influenced the settlement deeds. The plaintiff has failed to do that; his evidence is wanting.
The plaintiff’s evidence about his knowledge of the legal barriers is hopelessly vague. It carries very little probative weight. On the evidence before the Court, the plaintiff obtained this knowledge from Mr Lombard, his brother Mr Jens KC, or his sister’s friend. He cannot recall who told him that suing the defendant was not possible. This casts significant doubt on the weight that the plaintiff placed on that advice.
Mr Jens KC’s evidence is that he did not provide legal advice to his brother, so it could not have been him. Mr Lombard had no recollection of his conversation with the plaintiff. He believes he said something about the time limitation barrier and the Ellis defence. There are no available records concerning the plaintiff’s enquiries with Holding Redlich.[122] Mr Lombard had no experience in the area of institutional abuse and so cannot state his usual practice in that area. It is therefore problematic to accept Mr Lombard’s supposition about what he believed he would have said. The third option is the plaintiff’s sister’s friend, who is not identified in the evidence, and whether she had any legal training is unknown. If she had no legal training, it should not be accepted that the plaintiff would have placed meaningful weight on what advice she may have given about the legal barriers.
[122]Holding Redlich confirmed, in response to a subpoena filed by the defendant, that they do not hold any records relating to the plaintiff’s enquiry. The file was closed on 8 May 2012 and its documents were destroyed in 2020 under their document retention policy.
The parties agree that the legal barriers were never raised during their discussions.
The plaintiff’s negotiations can be distinguished from ABB’s circumstances, where a proceeding had been issued and the defendant formally pleaded the Ellis defence. In that circumstance, it was necessary for the defendant’s solicitors to explicitly discuss the defendant’s intended non-reliance on the Ellis defence, as in the 10 July 2003, 11 September 2003 and 31 October 2003 letters between Mr McGarvie and Mr Poulton.
The defendant had six proceedings issued against them between 2005 to 2018 with respect to child abuse, and in none of those proceedings did the defendant file a defence containing pleadings relying on the Ellis defence or limitation period expiration.[123]
[123]Second Davies affidavit, [5]-[6].
There is no reference to the legal barriers on Ms Sdrinis’ file.[124] The time limitation barrier had been removed by the time she was advising the plaintiff.
[124]Affidavit of Beth Marsh affirmed on 7 February 2024, [9].
The plaintiff does not depose that his claim was worth a certain sum but for the existence of those defences, and that he compromised his claim accordingly. There is no evidence the plaintiff would have received a greater settlement sum had the defendant said it was not relying on the limitation and legal defences.
The plaintiff’s evidence contradicts his stated position about the strength of his case in 2014. The defendant relies upon the 3 December 2014 Calder email which records Fr Head’s two hour meeting with the plaintiff. The plaintiff reportedly sought a lump sum payment of $400,000, which Fr Calder told him the defendant would be unlikely to pay and ‘he may thus have to think of pursuing us legally’. The plaintiff said ’that he was aware of this options [sic] and that his brother, the QC, had told him he had a strong case and that it would cost us (the defendant) far more if he did this, but that he was willing to settle for the above amount.’[125]
[125]Exhibit “SGC-1” to the Collins affidavit, 5.

Analysis

I find the legal barriers materially impacted the plaintiff’s decision to enter into the settlement deed.
Firstly, the plaintiff has deposed that he had knowledge of the barriers and they impacted his decision to seek compensation directly from the defendant and accept the settlement sum. The plaintiff deposes he received some basic advice from Mr Lombard. He deposes:[126]
I didn’t know what to ask for in terms of compensation, and I do not remember getting legal advice about that. I wanted to figure it out on my own. I did know that suing the Jesuits was not possible because of their organisational legal structure – either Michael Lombard or my brother or someone else (maybe a friend of my sister) had told me that. I had also been told about time limits, and I knew that 40 years after being abused I was out of time. So I knew that asking for some money was the only possible way of getting some compensation.
I had no idea what my claim was really worth. In the end, the Jesuits offered me $150,000 and I took it. It seemed like a modest sum, given what I had been through, but I was very aware that this was my only avenue for getting some compensation from them. With help from my sister’s friend and my brother Paul, I drafted a Deed and sent it to the Jesuits.
[126]Plaintiff’s affidavit, [12]-[13].
I accept the plaintiff’s evidence. I reject the defendant’s submission that the plaintiff’s evidence is hopelessly vague and of little probative value. The plaintiff’s evidence, recited above, is clear. He candidly states that he is unsure whether it was Mr Lombard or another source who told him about the legal barriers. Nevertheless, he was aware of the barriers. The defendant did not challenge the evidence under cross-examination. Moreover, Mr Lombard provided evidence that corroborates the plaintiff’s evidence that he was informed about the legal barriers. That is the next point.
Secondly, Mr Lombard’s evidence is that he told the plaintiff that there were legal difficulties with a claim against the defendant. Mr Lombard deposes that he was aware of the legal barriers. Although he cannot recall the precise conversation with the plaintiff, he would have said something concerning them.
I accept Mr Lombard’s evidence. Contrary to the defendant's assertion, Mr Lombard does not give evidence about his usual practice. Rather, he says that although he cannot precisely recall the conversation with the plaintiff, he believes he would have told him about the legal barriers. I find Mr Lombard’s evidence about his lack of recollection regarding the precise words used to be compelling because more than a decade has passed since the conversation. Mr Lombard deposes how he was aware of the legal barriers and how he came to advise the plaintiff. I accept his explanation. His evidence follows:[127]
I had also been a student at Xavier, and the client, who was given the pseudonym ABB, had been a classmate and a friend. I knew of the claim while it was going on. I knew the abuser was a Priest called Father Bradford who I remembered well from school.
Because of my past history with ABB, I kept my distance from the claim Michael McGarvie ran for my former classmate. I knew that there were difficulties with the claim and I knew that it was eventually resolved without a trial. I did not know the terms of the settlement, and still do not know.
I did not know of the attitude of the Jesuits to the statute of limitations or to what later became known as the Ellis defence. I just knew that the Jesuits were fighting the claim.
In around 2007 or 2008, Damian Jens came to see me for advice about sexual abuse he suffered while a student at Xavier. He told me he had been abused by Father Bradford. Bradford, or ‘Brick’ as he was known, used to coach me in the Under-16s football team and was a large presence in the school.
I don’t recall the detail of the conversation I had with Damian and certainly not the precise words I used. But I told him a legal claim against the Jesuits would not be easy and there were legal difficulties. I can’t recall, but I believe I would have said something concerning the Ellis issue and the statute of limitations. I was well aware in that period of the legal difficulties facing abuse survivors in bringing legal claims against Church entities – namely the fact that the Churches said that they were unincorporated associations and had no legal identity and could not be sued, and the statute of limitations.
I believe I had one meeting with Damian personally and two subsequent discussions on the phone with him. During the last conversation he told me he didn’t wish me to take any action.
[127]Lombard affidavit, [7] – [12].
Thirdly, as I stated earlier, it is common ground that neither party raised the legal barriers in their discussions with the other. There is no evidence to refute the plaintiff’s belief that the legal barriers existed when he entered into the settlement deed. I decline to draw an inference that he was aware that the defendant was not relying upon the legal barriers when he was negotiating the settlement deed because the defendant had publicly stated it would not and did not refer to the barriers in the settlement discussions. Drawing this inference is contrary to the plaintiff’s evidence above.
As Forbes J stated in Pearce v Missionaries of the Sacred Heart (‘Pearce’):[128]
Absent a clear and unequivocal statement that the Ellis defence was not applicable or would not be raised, it could be allowed to remain something of an elephant in the room.
[128][2022] VSC 697, [93] (‘Pearce’).
The defendant says there is no evidence from the plaintiff about what his claim was worth compared to the amount he settled. There is no such evidence contemporaneous with negotiations for the settlement deed. However, it cannot therefore be inferred that the legal barriers had no material impact upon the settlement, particularly in circumstances where the plaintiff deposes that seeking compensation was his only option and he believed he was engaged in a glorified begging process.
Turning now to the variation deed. It records at clause 2 that there is reliance on the release in the initial settlement deed. The correspondence between the parties shows that the defendant continued to rely upon that release when the variation deed was being negotiated.[129] The plaintiff’s evidence is that, at the time, he was aware the earlier release bound him.[130]
[129]Plaintiff’s affidavit, [25]-[26]; Exhibit “PJ-1” to the plaintiff’s affidavit, 22-23; Exhibit “PJB-1” to the Brown affidavit, 47-47.
[130]Plaintiff’s affidavit, [25].
As discussed above, the defendant relies on their own email, namely the 3 December 2014 Calder email, and submits that there is a difference between the plaintiff’s evidence about the impact of the legal barriers, and his view about the strength of his case at the time of negotiating a variation to the settlement deed in 2014. Putting to one side the hearsay nature of such evidence, it is of low probative value. Mr Jens KC has deposed, categorically, that at no stage was he ever the plaintiff’s lawyer, nor did he ever give legal advice to him.[131] Mr Jens KC’s evidence was not challenged. Moreover, even on the face of the email, there is nothing to suggest that this was the plaintiff's belief at the time of negotiating the settlement deed in 2011.
[131]Jens KC affidavit, [22].
Even if the 3 December 2014 Calder email correctly records the meeting, the plaintiff’s comments seem consistent with positioning during a negotiation. Reference to the plaintiff seeking a $400,000 lump sum compensation in the Calder email is reference to the plaintiff seeking compensation in lieu given his sons were no longer going to attend Xavier College as boarders. Indeed, Ms Sdrinis refers to this ‘saving’ in her 29 April 2016 letter to the defendant. Her opinion expressed in the 22 February 2015 letter was that the plaintiff had already received in excess of what a Court would award and, that she considered the settlement deed binding. I reject any suggestion that the Calder email evidences the plaintiff’s assessment of damages.
In conclusion, this factor weighs significantly in favour of setting aside the settlement deeds on the basis it is just and reasonable to do so.
Turning now to the supportive factors.

The plaintiff’s legal advice and representation; bargaining power

Plaintiff’s submissions

The plaintiff says that he was not legally represented or advised by his brother during the negotiations, save for Mr Jens KC providing him with wording for drafting the settlement deed. Mr Jens KC deposes that he only provided support to his brother during negotiations, and no legal advice as to damages assessment, litigation prospects or required medical assessments.[132]
[132]Jens KC affidavit, [15].

Further, Mr Jens KC’s evidence is that he was ‘surprised to hear’ that the defendant had offered the plaintiff $90,000 during the settlement deed negotiations in 2011.[155] Absent an explanation as to that, the Court can infer that Mr Jens KC expected the defendant to offer less, and in turn, that the $150,000 plus school fees was a reasonable settlement of the plaintiff’s claim.
[155]Jens KC affidavit, [14].

Analysis

For this application, I make the following findings.
Save for the legal barriers, the plaintiff had a good prospect of success if he proceeded to trial when he entered into the settlement deed in 2011. The defendant admits some of the 1968 abuse allegation and says it was reported on or about 30 July 2008.[156] The plaintiff’s uncontradicted evidence is that the 1970 abuse occurred.[157]
[156]ASOC, [10](a); Defence, [10](a).
[157]Plaintiff’s affidavit, [3]-[4].
From the account of the plaintiff’s meeting with Bradford on 24 May 2011, it appears that Bradford admitted he had sexually abused the plaintiff, although no particular details of sexual abuse were discussed.[158] Certainly, Bradford did not deny the abuse. Mr Jens KC regarded Bradford’s comments as an admission about the plaintiff’s allegations; there was no denial.[159] The plaintiff also describes Bradford admitting to the abuse after Fr Curtin pushed him. The plaintiff deposes that the defendant did not ask him questions or seek further details of the abuse from him.[160] The defendant’s file note of the meeting, written by Fr Head, records that Bradford could not remember the incident with the plaintiff, even when shown photographs of the plaintiff as a boy.[161]
[158]Plaintiff’s affidavit, [10]
[159]Jens KC affidavit, [12].
[160]Plaintiff’s affidavit, [10]-[11].
[161]Head affidavit, [19].
The defendant operated Xavier College.[162] The defendant appointed Bradford to Xavier College in the period 1964 to 1979.[163] The plaintiff was sexually abused while he was a student boarding at Xavier College. There are credible complaints that Bradford also sexually abused other boys at Xavier College.
[162]Defence, [6](a).
[163]Defence, [8].
The defendant was responsible and liable for the health and safety of students at Xavier College.[164] The Australian Province of the Society of Jesus (replaced by the defendant pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic)) owed the plaintiff a duty of care. The plaintiff had a good prospect of establishing the defendant breached its duty of care. The defendant may not have been aware of Bradford being an abuser at the time of the alleged abuse in this proceeding, however as pleaded by the plaintiff, the defendant knew or ought to have known about the existence of other paedophiles at Xavier College at the time.[165]
[164]Defence, [7](d).
[165]ASOC, 11.
Evidence supports a significant assessment of damages for pain and suffering, loss of enjoyment of life, and future medical treatment. The plaintiff deposes as to the devastating consequences of the abuse on his life as follows:[166]
The abuse has had devastating consequences on my life. I have struggled with depression and suicidal thoughts for decades. I turned to drugs and alcohol to help me hide my emotional suffering from others. I was drinking heavily from the age of 18 until about 6 years ago. There was a period in the late 1980s to early 1990s when I would drink solidly for 12-14 hours a day. I smoke[sic] marijuana from the age of 17. When I was in my early 30s, I switched to harder drugs, including cocaine, amphetamines, ecstasy, LSD, ketamine and heroin. I have memory loss from this period of my life.
I have been diagnosed with depression and PTSD. My psychiatrist has recommended many times that I take antidepressants but because of my history with drug use, I’m scared to go down that path.
The abuse had a huge impact on my education and what I’ve been able to achieve since leaving school. Before I was abused, I was a very good student. After Bradford abused me the first time, I ran away from school three times that year. I was made to repeat Form 3, and I failed my first attempt at Form 6. I did not go on to university, even though I wanted to. My marks and my mental health weren’t good enough to allow me to study at university after school.
In about 1994, I started a Bachelor of Arts but I failed most of the subjects because I was still using drugs. I dropped out of the course after about 12 months.
I’ve moved around a lot as an adult. I’ve had dozens of short-term jobs, and long periods of unemployment. There have been a number of occasions when my family have helped me get work. Without their help, I would have been unemployed.
[166]Plaintiff’s affidavit, [28]-[32].
Dr Tagkalidis, a psychiatrist, undertook an independent psychiatric assessment of the plaintiff on 3 October 2023.[167] He concludes that the plaintiff ‘is currently suffering from a partially abated chronic Dysthymic Disorder (Persistent Deptressive Disorder in the DSM V), from features of traumatisation with associated personality disruption, and from a partially abated Alcohol Use Disorder, in part relevant to the claimed injuries.’[168] Dr Tagkalidis finds that the plaintiff’s past polysubstance abuse, ‘which was significant in his mid 30s, and was in part relevant to the abuse, has since resolved.’ Further that:
the relevant abuse caused a more obvious detrimental effect on his development trajectory which resulted in significant compromises in his functioning and emotional wellbeing…
[167]Exhibit “RN-1” to the second Nevill affidavit, 257-268.
[168]Exhibit “RN-1” to the second Nevill affidavit, 265.
Dr Tagkalidis opines that ‘[i]t is unlikely [the plaintiff] would have developed the psychiatric disorders but for the relevant abuse period. It is more likely that he would have settled into a more stable emotional state if the abuse had not occurred.’ He concludes ‘the relevant abuse incidents and their long term sequelae contribute approximately 75% of his long term and ongoing emotional vulnerability and distress.’[169]
[169]Exhibit “RN-1” to the second Nevill affidavit, 265.
Dr Tagkalidis opines that the plaintiff will have chronic dysphoria and poor self-esteem for the remainder of his life. He recommends ongoing regularly fortnightly sessions with a treating psychologist for 2-3 years, and a trial of anti-depressants.[170]
[170]Exhibit “RN-1” to the second Nevill affidavit, 267.
Evidence supports significant damages for loss of earning capacity. The Thompson report concludes that the plaintiff’s pecuniary loss (loss of earnings, superannuation and interest) is between $1,229,239 and $4,932,755.[171]
[171]Exhibit “RN01” to the second Nevill affidavit, 4-256.
I do not accept the defendant’s submission that the assumptions underlying the calculations are unsupported. The evidence of Dr Tagkalidis supports the assumption that, but for the abuse, the plaintiff would have had a more successful career. Dr Tagkalidis opines:[172]
I would suggest that he clearly had the intellectual capacity to complete his secondary schooling in an academically successful fashion, almost certainly had the intellectual capacity to complete a tertiary degree and would have been more likely than not to have a career stream.
It is clear that the trajectory altering effects of the abuse period caused the disruption in the crucial periods of education which caused his academic achievement to be scuttled.
His working career has been hampered by persistent alcohol and drug abuse, poor self worth and low confidence, difficulties interacting with male figures and poor stress tolerance, all directly the result of the relevant abuse period.
As such, I think it is far more likely than not that he would had a significantly more successful and productive working career, but for the long term trajectory and long-lasting effects of the relevant abuse period.
[172]Exhibit “RN-1” to the second Nevill affidavit, 266.
The plaintiff’s brother Mr Jens KC, who also attended Xavier College, is a senior barrister. The assumption that the plaintiff would have had a successful career in the law is plausible.
Mr Thompson’s evidence remains uncontradicted at this point. There is no expert evidence to rebut the calculations.
The total compensation paid by the defendant in 2011, being $150,000, is a modest sum compared to what he would have received in 2011, had the matter proceeded to trial. Per the variation deed, the total compensation was ultimately, with the addition of school fees, around $261,000. The same analysis applies. It is a modest sum.
The assessment opinions of Mr Brown and Ms Sdrinis were not formed with the benefit of medical evidence or evidence as to any pecuniary loss. They hold little weight. Further, I decline to make an inference that Mr Jens KC considered $90,000 to be a surprisingly high offer. Read in context, Mr Jens KC’s surprise at the defendant’s offer relates to the fact that it was ‘the next thing’ that he heard after the 24 May 2011 meeting in which there was no discussion about compensation.[173]
[173]Jens KC affidavit, [13]-[14].
Pausing there, I reject the plaintiff’s submission that the calculation should be reduced because his ex-wife was also a signatory to the deed, and the monies paid for school fees were for their sons.
The compensation paid to the plaintiff is heavily discounted in comparison to the damages that he might be awarded now.
In conclusion, this factor weighs in favour of setting aside the settlement deed.

The conduct of the defendant

Plaintiff’s submissions

The plaintiff ought to have been informed of the other complaints against Bradford. It was incumbent upon the defendant in circumstances where they were purportedly pursuing a pastoral approach to negotiating with the plaintiff. Instead of informing the plaintiff of his true legal position as to the likelihood of being believed and liability being accepted, the defendant subjected the plaintiff to a ‘charade’ of bringing Bradford in from interstate as if it was the first time he had been accused of abuse.
The defendant could not have doubted that they were dealing with a serial recidivist paedophile who repeatedly sexually assaulted young boys, yet they did not provide this valuable information to the plaintiff, who merely speculated to them about knowing of other complainants. Such information was vital to the plaintiff understanding his true legal position and it was incumbent on the defendant to share this information.
Fr Head ought not to have been conducting negotiations with the plaintiff. Fr Head worked with Bradford at Xavier College. As outlined in A7’s complaint, Fr Head must have been naïve or deliberately ignoring Bradford’s behaviour at the time of his offending. In turn, as agreed by Fr Renshaw in his record of A7’s complaint, Fr Head was not the best person deal with Bradford’s abuse complainants. Fr Head had an interest in keeping Bradford’s abuse out of court. The defendant should have disclosed this conflict to the plaintiff.
The defendant had a statutory obligation to report Bradford to the police.

Defendant’s submissions

The defendant conducted itself in an exemplary manner in dealing with the plaintiff’s matter over many years.
The defendant never took a technical legal approach to negotiations with the plaintiff. It never relied on the legal barriers. The defendant had publicly declared that they would not do so, and they were true to this word.
Mr Brown’s 12 July 2016 letter is factually true: the defendant was engaging in a gesture of goodwill by negotiating further with the plaintiff after the settlement deed had been executed. There was no legal obligation for the defendant to reopen discussions. After being contacted by the plaintiff regarding the change to his sons' schooling, rather than dismissing him, the defendant invited him to attend a meeting to discuss varying the settlement deed by way of the 2 December 2014 letter.
The defendant, in accordance with the plaintiff’s wishes, facilitated numerous meetings between the plaintiff and Fr Head. The plaintiff’s assertion that it was inappropriate for Fr Head to communicate with the plaintiff is strongly disputed by the defendant.
Further, the defendant facilitated a meeting between the plaintiff and Bradford, at the plaintiff’s request. At the 24 May 2011 meeting, Fr Curtin provided an apology to the plaintiff.
The plaintiff expressed his gratitude to the defendant for their approach on numerous occasions. For example, in the 11 July 2011 email he stated he was ‘very, very grateful for all the time and compassion’ afforded to him by the defendant.
The defendant says it did not have a statutory obligation to report Bradford to the police. Further, it was important that the defendant allow survivors of child abuse to exercise autonomy as to how their complaints were dealt with, and to not subject them to further trauma that can be caused by way of the criminal prosecution route. The defendant also disputes the plaintiff’s representation that Bradford was never reported to the police.

Analysis

I strongly reject the defendant’s submission that their conduct was exemplary.
I accept that the defendant provided pastoral care to the plaintiff. The defendant gave the plaintiff some agency in the form of the settlement deed, arranging the meeting with Bradford, and negotiating the variation deed. However, the defendant did not ensure that the plaintiff was adequately supported or informed in his negotiations, which led to the settlement deed. He was not legally represented. Information about other abuse complaints against Bradford was not disclosed. Medical information enabling a proper assessment was not sought. The defendant took no steps to ensure the plaintiff knew the defendant did not rely on the legal barriers. He was not encouraged to make a complaint to the police.
Fr Head was accessible to the plaintiff and the plaintiff appeared to have an affinity for him, dropping in for coffee and seeking meetings with him. Based on Fr Head’s file notes, this afforded the plaintiff a space to openly vent his feelings and emotions. There appears to be an element of pastoral care. However, during this time Fr Head also had his obligations as Head of Professional Standards of the defendant. It is unclear what information he held about abuse by Bradford and whether he would have been a potential witness for the defendant had the plaintiff commenced legal proceedings. As the 17 June 2011 file note shows, he was directly involved in the negotiations with the plaintiff to resolve his claim, but in the capacity of representing the defendant. The plaintiff did not have the benefit of ongoing independent legal advice at this time. The capacity in which Fr Head held his informal meetings with the plaintiff is troubling. He provided pastoral care to the plaintiff whilst serving the defendant’s interests in negotiating the settlement deed.[174]
[174]See, for instance, the discussion of the settlement amount in the 17 June 2011 file note.
I express no concluded view about whether there was an actual conflict, as alleged by the plaintiff, as this allegation was not put to Fr Head.
There is a dispute between the parties as to whether the defendant was legally obliged to report Bradford to the police. Further, whether any police complaints were formally made. The defendant refers to a letter dated 22 December 2014 from the Provincial Brian F McCoy to the Superior General in Rome, referring to a report to police by a complainant against Bradford, apparently ABB. The 22 December letter also enclosed a ‘letter from Noel Bradford to His Holiness Pope Francis dated 22 August 2014’, however this letter was not included in the document provided to the Court. This reporting dispute is not a matter for determination in this ruling.
On balance, I assess this factor to weigh in favour of the plaintiff.

The plaintiff’s mental health

Plaintiff’s submissions

The plaintiff says he was suffering from mental ill health at the time of the negotiations and the defendant was aware of this. The plaintiff exhibited symptoms of mental ill health during his meetings with the defendant. For example, in the 30 July 2008 file note Fr Head recounts:[175]
Damian has recurring nightmares of the pair of black Julius Marlow shoes coming towards him and it took quite a few years before he linked these nightmares with N and the experience that night. He continues to have flashbacks to the night every so often and becomes really angry. He says he feels guilty that if he had spoken up some other might not have been molested.
[175]Exhibit “MH-1” to the Head affidavit, 4.
The defendant also records that the plaintiff was suffering from depression in the 4 May 2011 file note.
The plaintiff refers to the Dr Tagkalidis report[176], which outlines his history of drug and alcohol abuse and psychiatric impacts of his traumatisation, including chronic dysthymic disorder and associated personality disruption.
[176]Exhibit “RN-1” to the second Nevill affidavit, 257-268.
The defendant knew the plaintiff was mentally ill, and yet placed various onuses on the plaintiff, including the raising of the legal barriers during negotiations and the reporting of the abuse to the police. The undertaking of both of these would have assisted the plaintiff’s legal position. Police investigations and prosecutions of child sex abusers inevitably bring forward other complainants.

Defendant’s submissions

The defendant says there is no evidence that the plaintiff was suffering from a psychiatric condition during the negotiations of the settlement deeds. The defendant says that evidence that the plaintiff was engaged in counselling at the time, and emotional and distressed during discussions about Bradford does not amount to evidence of a serious mental illness.
The defendant refers to the Thompson report.[177] The plaintiff’s income tax returns for 2008 to 2011 show that the plaintiff had a significant degree of capacity to work during the relevant period and, it follows, to engage in negotiation.
[177]Exhibit “RN-1” to the second Nevill affidavit, 15.

Analysis

For this application, I accept Dr Tagkalidis’ assessment of the plaintiff.
It is common ground that the plaintiff was undergoing counselling in 2013 as referenced in Fr Head’s 18 October 2013 email to Fr Curtin[178], and per the variation deed, the defendant undertook to pay for some of that.
[178]Exhibit “MH-1” to the Head affidavit, 20.
However, there is no evidence which shows that the plaintiff’s psychological injuries materially impacted upon his decision to enter into the settlement agreement or the variation agreement.
Accordingly, I weigh this factor neutrally.

Unfair prejudice

Plaintiff’s submissions

None of the matters raised by the defendant amount to unfair prejudice.

Defendant’s submissions

Setting aside the settlement deeds would cause substantial unfair prejudice for the following reasons.
Firstly, the defendant accepted the plaintiff’s requested amount for compensation in 2011. Further, they have already renegotiated with the plaintiff. The defendant has incurred costs relating to both of those settlements.
Secondly, documents are unavailable. The Holding Redlich file has been destroyed. So too the documents the plaintiff had regarding his negotiations with the defendant.[179]
[179]Plaintiff’s affidavit, [7].
Thirdly, the plaintiff did not previously seek economic damages.
Fourthly, the 1970 abuse allegation is a new claim. It concerns an allegation that occurred nearly 53 years ago. The allegation was raised for the first time, by way of the statement of claim in this proceeding, 15 years after the plaintiff first raised the 1960 abuse allegation with the defendant. The defendant has not had the chance to investigate the allegation.

Analysis

In Diocese of Sale v WCB[180] (‘WCB’), the Court of Appeal stated:[181]
In determining whether it would be just and reasonable to set aside the terms of settlement, consideration must therefore be given to whether it would be just and reasonable for the defendant to lose the protection of the terms of settlement and not be exposed to a further claim on it by the plaintiff. The resolution of that issue would involve a consideration whether there would be unfair prejudice to the defendant in the conduct by it of its defence from such proceedings.
[180][2020] VSCA 328 (‘WCB’).
[181]WCB, [124].
In WCB, the defendant / appellant contended the application to set aside should be refused. They relied upon the lapse of time, unavailability of some critical witnesses and important documents.
Here, the defendant has been on notice since 2008 that the plaintiff alleged he had been sexually abused by Bradford. Further, Bradford admitted to the abuse.
There is no evidence that the defendant undertook any investigations into Bradford’s conduct regarding the plaintiff conduct from this date. Fr Head’s 30 July 2008 file note stated that the plaintiff ‘knows of several other boys who (claim) they were molested by [Bradford] over some years. He did not give names and I did not ask for them’.
The defendant has put abuse allegations to Bradford. This occurred at the 24 May 2011 meeting, deposed to by the plaintiff, his brother and Fr Head.
As to the 1970 abuse allegation: the plaintiff can give evidence about it. There is no evidence that the plaintiff elected not to pursue the 1970 abuse allegation. The abuse incidents were not described in the settlement deed. The plaintiff’s evidence is that ’[T]he Jesuits did not ask me questions, they didn’t want details. For example, they never asked me how many times Bradford abused me.’[182]
[182]Plaintiff’s affidavit, [11].
There is also no evidence before the Court indicating whether Bradford is alive and able to be questioned regarding the alleged 1970 abuse allegation.
As to the documents that the defendant says they are unfairly prejudiced by not having: the Holding Redlich file and the plaintiff’s records during negotiations would not substantially assist the defendant in defending the claim in this proceeding, rather the probative value of those documents would have been for this application. I therefore do not accept the unavailability of those documents causes substantial unfair prejudice.
I accept the effluxion of time causes prejudice. However, as with WCB,[183] the defendant has not identified any material prejudice by reason of which it would not be just and reasonable for the Court to set aside the settlement deeds. In WCB, the Court of Appeal stated:[184]
It may be accepted that, as a result of the effluxion of time, the defendant may be at a disadvantage in resisting the claims made on behalf of the plaintiff. However, as the foregoing analysis reveals, the defendant has not been able to identify any material prejudice by reason of which it would not be just and reasonable for the Court to set aside the Deed concluded by the parties in 1996. Accordingly, we are not persuaded that the judge erred by holding that the defendant had not been relevantly prejudiced by the lapse of time or the consequential loss of evidentiary sources.
[183][153].
[184]WCB, [153].
Here, I am satisfied that the plaintiff’s injury in relation to the 1970 abuse allegation ought not be precluded from the setting aside of the previously settled cause of action. There is no basis for excluding the 1970 abuse allegation on the basis of unfair prejudice.
As to the amounts already paid to the plaintiff: the prejudice may be met by the Court taking into account such payments should damages be awarded per s 27QE(2).
Turning now to the economic loss claim.

Economic loss claim

Plaintiff’s submissions

The plaintiff’s previous settlement should be set aside in whole, and he should not be precluded from seeking economic loss.
The plaintiff rejects the defendant’s submission that he did not claim economic loss because there was no economic loss to substantiate. He did not claim economic loss because of the legal barriers. He was not participating in a litigious process. He was participating in an informal settlement process that was not designed to compensate him. He engaged in a series of informal meetings with the defendant, unrepresented. He was legally powerless and only seeking a sum that he thought he might be able to persuade the defendant to pay him. There was no regard for recognised heads of damages including economic loss damages.
The plaintiff’s claim, as settled by the settlement deed, was never contemplated with regard to common law damages principles. The plaintiff did not supply economic loss particulars, and he also did not supply general damages particulars; the defendant sought no such material and none was supplied by the plaintiff. The circumstances are distinguishable from Pearce, where economic loss damages were explicitly contemplated.
In respect to negotiations of the variation deed, the plaintiff was in an even worse legal position. The settlement deed had abolished his rights.

Defendant’s submissions

In the alternative, if the whole settlement agreement is not set aside, the part of the plaintiff’s potential entitlement related to economic loss should not be set aside for the following reasons.
First, the plaintiff did not claim loss of earnings when negotiating the settlement deed. Nor was a claim made later when negotiating the variation deed, and represented by Ms Sdrinis. No particulars of special damages or calculations of loss of earning were ever provided to the defendant to prove that the plaintiff attributed any part of his claim to loss of earnings.
Second, there is no evidence from the plaintiff as to why he did not pursue an economic loss claim earlier and is pursuing it now. It is open to infer that he did not pursue an economic loss claim earlier because his earnings around the relevant time were quite substantial: see the Thompson report at 101. The years 2008-2011 represent the plaintiff’s highest earnings of the entire period. The likelihood is that the plaintiff decided not to pursue economic loss at the time, similar to Pearce. His decision had nothing to do with the legal barriers.
Third, and relatedly, the plaintiff does not provide specific, clear evidence about how the legal barriers affected his claim for economic loss. There is no evidence from him that he decided not to pursue an economic loss claim because of the legal barriers.
In answer to the Court’s questions, the payment should be characterised as a lump sum payment. Typically, a deed does not specify what part of the settlement sum is for pain and suffering and what is for economic loss. There is nothing particularly unusual about the settlement deed in that respect.

Analysis

The plaintiff seeks damages for past pecuniary loss and loss of future earning capacity.[185] By his list of special damages filed on 31 January 2024, the plaintiff claims pecuniary loss between $1,248,791.62 and $4,952,307.62. This is comprised of past loss of earnings and superannuation. The plaintiff relies on the Thompson report discussed above.
[185]ASOC, [16].
The settlement sum of $150,000 was not itemised. The deed of settlement does not specify whether or not it included economic loss.
The plaintiff’s evidence is that he sought compensation for what he had been through. He cites that the abuse had a big impact on his education and career. On his evidence he saw no difference, or did not understand there to be any difference, between damages for pain and suffering and damages for loss of earnings. This is supported by the defendant’s accounts of discussing compensation with the plaintiff. The 3 December 2014 Calder email stated that ‘[the plaintiff] believes that this original cash payment in no way compensated him for effects of Noel’s abuse on his longer term life as it has been lived. His measurement for this is the success of all his siblings that he believes he has not enjoyed in his own life due to the effects of the abuse’.
Correspondence circulated by the defendant and its advisors indicated that the defendant was considering a demarcation of pain and suffering and economic loss only in hindsight. In the 3 December 2014 email, Mr Calder states:
A further payment may be in order, but not $500,000. This being noted, we have in the Deed an agreement to cover the Xavier fees for two students. This is acknowledged by us and it represents a lot of money going forward… It remains, though, that Damian’s losses due to his pain and suffering are not near to half a million dollars, especially given an extant payment of $150,000. Perhaps we could offer $350,000, which is the $150,000 taken off his request amount.
The defendant was advised by Mr Collins in the 10 December 2014 advice that:
the context of a mediated settlement entails that the Society is properly informed about the alleged sexual assault, the injuries caused by the assault and full particulars of DJ’s financial claim… if D’s claim includes damages for psychological injury then he must provide a medical report and consent to be examined by a psychologist and/or psychiatrist retained by the society.
No such material was exchanged before execution of the settlement deed, the 22 December 2014 mediation or the execution of the variation deed. There was no material exchanged by the parties that explains whether or not the settlement sum was calculated on the basis of pain and suffering, and economic loss, or both. No itemisation of loss was sought by the defendant, or provided by the plaintiff. The defendant did not follow the advice of its legal advisor Mr Collins, who clarified what needed to be done to ensure a meaningful assessment of the claim. The defendant opted instead to rely on the settlement deed as evient in their solicitors’ correspondence with Ms Sdrinis.
In DZY, the settlement deeds recorded that DZY did not allege he suffered any loss of earning capacity because of the alleged assault. He made no demand for such a loss as part of his claim. A note on his solicitor’s file recorded no economic loss was to be claimed because of ‘DSS’.[186] (That was a reference to social security payment issues.) Two other documents on his solicitor’s file recorded ‘no’ concerning a loss of earnings claim.[187] His solicitor recorded advice given by counsel at a settlement conference that there was a risk to the plaintiff’s social security payments being claimed back, and the plaintiff’s instructions not to include loss of earnings in his claim.[188] After obtaining further instructions, his solicitor wrote to the defendant proposing to amend the draft settlement deed to note no claim for economic loss was made. The deed was amended accordingly.[189]
[186]DZY, [28].
[187]DZY, [31].
[188]DZY, [33].
[189]DZY, [35], [37], [39].
In Pearce, the settlement agreement recorded that no claim for economic loss had been made and the settlement sum did not include that component.[190] In that case, although the plaintiff wished to make a claim, he accepted legal advice not to do so.[191]
[190]DZY, [109].
[191]DZY, [108].
The circumstances here may be distinguished from those in Pearce and DZY. The plaintiff does not recall receiving advice about the value of his claim, as outlined above. The plaintiff’s evidence, and the defendant’s contemporaneous notes concerning discussions with the plaintiff, indicate he did not understand the difference between heads of damage. There is evidence that he did not consider $150,000 to be enough given the impact on his career as compared to his siblings. There is no evidence to indicate that the defendant afforded this amount to him on the basis that it represented only pain and suffering. There is no evidence that the plaintiff made an election not to pursue economic loss.
In these circumstances, it cannot be inferred that the plaintiff elected not to pursue economic loss. I decline to draw that inference based on the plaintiff’s earnings at the time. I reject the defendant’s submission that the plaintiff was required to give evidence referring specifically to the effect of the legal barriers on his economic loss claim in the circumstances here. I am satisfied that the plaintiff’s evidence about the impact of the legal barriers on his decision to settle applies to his whole claim. His evidence was not challenged.
As discussed above, for the current application, I accept there is a significant claim for loss of earnings.

Conclusion – whether just and reasonable to set aside

The legal barriers materially impacted upon the plaintiff entering into the settlement deed. Considering this factor and synthesising the supportive factors above, it is just and reasonable to set aside the settlement deed and the variation deed.
The parties will be given the opportunity to make submissions as to the orders consequential to this ruling.

[2024] VSC 329

19 June 2024