Magann v Trustees of the Roman Catholic Church of the Diocese of Parramatta - [2019] NSWSC 1453

Supreme Court

New South Wales

Medium Neutral Citation: Magann v Trustees of the Roman Catholic Church of the Diocese of Parramatta [2019] NSWSC 1453
Hearing dates: 18, 19, 20, 21 March 2019 (last evidence filed 16 May 2019)
Decision date: 28 October 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Declare that the Deed of Release dated 16 October 2007 between the plaintiff and the defendant is valid and extinguishes the defendant’s liability in relation to any cause of action arising from the matters contained in it including these proceedings.
(2) Direct the plaintiff to file and serve within 14 days any submissions as to why it would be inappropriate for the Court to dismiss his claim.
(3) Direct that the defendant file and serve any submissions in reply, if required, within 7 days after receipt of any submissions from the plaintiff.
(4) Reserve judgment as to whether the court should dismiss the proceedings and direct that such determination take place on the papers.
(5) The plaintiff is to pay the defendant’s costs.

Catchwords: CONTRACTS –– motion for determination of separate question – r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) claim in respect of alleged childhood sexual abuse – where limitations period defeated claim without determination of its merits – where claimant signed deed of release releasing defendant from any liability in respect of his claims – where claimant received payment – where relevant limitations periods subsequently repealed – whether claim for damages maintainable following repeal of limitations periods notwithstanding deed releasing all liability – Contracts Review Act – unconscionability
Legislation Cited: Contracts Review Act 1980 (NSW), s 4(1), s 7(1), s 9, s 16
Interpretation Act 1987 (NSW), s 30C
Limitation Act 1969 (NSW), s 6A, s 58(2), s 58(2), s 60C(2), s 60G(2), Sch 3, Pt 3, cl 10, Sch 5
Limitation Amendment (Child Abuse) Act 2016 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited: Baltic Shipping Co v Merchant (1994) 36 NSWLR 361; (1994) Aust Contract R 90-045
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251; [2001] UKHL 8
Bega v Lauvan Pty Ltd [2019] NSWCA 36
Borchert v Terry [2009] WASC 322
Brambles Holdings Ltd v Bathurst City Council (2001) NSWCA 61
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Campbell v Campbell [2015] NSWSC 784
Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24
Doggett v Commonwealth Bank of Australia (2015) 47 VR 302; [2015] VSCA 351
Eijkman v Magann; McGloin v Magann; Trustees of the Roman Catholic Church of the Diocese of Parramatta v Magann [2005] NSWCA 358
Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23
Griffin Energy Group Pty Ltd (subject to a Deed of Company Arrangement) v Laughland [2016] NSWSC 1057
Hanna v Raoul [2018] NSWCA 201
Lauvan Pty Ltd v Bega [2018] NSWSC 154
Louth v Diprose (1992) 174 CLR 621; [1992] HCA 6
Magann v The Trustees of the Roman Catholic Church of the Diocese of Parramatta [2018] NSWSC 1551
Provident Capital Ltd v Papa [2013] NSWCA 36
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Spina v Permanent Custodians Ltd (2009) 14 BPR 26;923; [2009] NSWCA 206
The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Proprietary Limited and Ors (No 2) NSWSC 322
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Wilton v Farnsworth (1948) 76 CLR 646; [1948] HCA 20
Texts Cited: Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015)
Category: Principal judgment
Parties: The Trustees of the Roman Catholic Church of the Dioceses of Parramatta (Applicant/Defendant)
Darren Peter Magann (Respondent/Plaintiff)
Representation:
Counsel:
L Gyles SC with A Campbell (Applicant/Defendant)
T Boyd (Respondent/Plaintiff)
Solicitors:
Makinson d’Apice (Applicant/Defendant)
Herbert Weller (Respondent/Plaintiff)

File Number(s): 2017/254444
Publication restriction: Nil

Judgment

Overview

This application concerns the validity of a Deed of Release. The plaintiff, Darren Magann, sues the Trustees of the Roman Catholic Church of the Dioceses of Parramatta (“the Church”) for damages arising out of historical child sexual assault allegations. The Church defends the claim by reliance on a Deed of Release entered into by Mr Magann which the Church claims extinguishes its liability.
On 18 October 2018, Harrison AsJ ordered that pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) there be a separate determination of the following questions (Magann v The Trustees of the Roman Catholic Church of the Diocese of Parramatta [2018] NSWSC 1551).

“(a) An order that any liability of the defendant to the plaintiff (which is denied) was extinguished by operation of a Deed of Release between the plaintiff and the defendant dated 16 October 2007 based on the same cause of action.
(b) In the alternative to (a) an order that the terms of a Deed of Release between the plaintiff and defendant dated 16 October 2007 be specifically performed by the plaintiff.”

As the matters for separate determination were framed in the terms of orders rather than questions, I propose to proceed on the basis that the separate questions for my determination are as follows:

Does the Deed of Release dated 16 October 2007 extinguish any liability of the Church in relation to a cause of action arising from the matters contained in the Deed?

In the alternative, should there be an order for specific performance of the Deed?

Procedural History

The plaintiff, Darren Magann, alleges that two Catholic priests regularly and repeatedly sexually abused him in the 1980s and early 1990s when he was a child.
On 19 May 2003, Mr Magann commenced proceedings in the NSW District Court against the Catholic Church and his alleged abusers, Fr Michael McGloin and Dr Henk Eijkman, seeking damages arising out of the sexual assaults alleged to have been committed against him. At the time that Mr Magann filed this Statement of Claim it was subject to certain limitation periods as then provided for by the Limitation Act1969 (NSW) (“Limitation Act”).
Although Judge Sorby granted leave for Mr Magann to extend the limitation period, the Church successfully appealed that decision to the Court of Appeal: Eijkman v Magann; McGloin v Magann; Trustees of the Roman Catholic Church of the Diocese of Parramatta v Magann [2005] NSWCA 358 (“Magann CA”). On 4 November 2005, the Court of Appeal held that it was not just and reasonable to extend the limitation periods. Accordingly, Mr Magann’s cause of action was statute-barred and dismissed.
On 16 October 2007, Mr Magann entered into a Deed of Release with the Church where the parties agreed that, in exchange for a payment of $95,000, he would release and discharge the Church from “all actions, suits, claims and demands of every description past present and future relating to or arising from the Claim or the Complaint or any other matters set out in th[e] Deed”.
In 2015, the Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) made the following recommendations at 53:

“85. State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.
86. State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.
87. State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.
88. State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented.”

Following the Royal Commission Report, the Limitation Amendment (Child Abuse) Act 2016 (NSW) amended the Limitation Act on and from 17 March 2016. (Although the Amendment Act was automatically repealed by s 30C of the Interpretation Act 1987 (NSW) with effect from 18 March 2016, in contrasting the current from the former law it is convenient to make reference to the Amendment Act.)
Section 6A of the Limitation Act now provides as follows:

6A No limitation period for child abuse actions
(1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.

Following passage of the Amendment Act, Mr Magann brought fresh proceedings against the Church by statement of claim filed on 21 August 2017 in this Court. This second statement of claim is in almost identical terms to the earlier claim, but this time the proceedings are brought against the Trustees of the Church alone.
On 7 February 2018, the Church filed a defence in which it pleaded that in answer to the statement of claim, any liability of the Church to Mr Magann (which was denied) was extinguished by operation of the Deed.
By notice of motion filed on 5 April 2018, the Church sought an order that the court separately determine and dismiss the proceedings on the ground that any liability of the Church to Mr Magann (which it denies) was extinguished by operation of the Deed. In the alternative, the Church sought an order of specific performance of the terms of the Deed.
As stated above, Harrison AsJ ordered a hearing on the separate question on 18 October 2018.

The hearing of the present proceedings

The hearing of the separate question was conducted before me over four days on 18, 19, 29 and 21 March 2019. At the end of the hearing Mr Magann was granted leave to produce supplementary evidence by 18 April 2019 in relation to the timing of the payment to him in 2007. The Church was granted leave to file evidence in reply by 16 May 2019. The last evidence was filed that day. I reserved my decision as at that date.
In response to the Church’s reliance upon the Deed, Mr Magann challenged the validity of the Deed on a number of bases. First, he contended that it was not the intention of the parties that the Deed prevent Mr Magann from approaching the Church for further assistance. Second, he claimed that he was misled by the Church as to his entitlement and a report of an independent assessor, Ms Robyn Bailey, dated 14 August 2007, was kept from him until after the settlement. He contended that the Church took advantage of his vulnerability by negotiating without the assistance of legal advice, that he lacked capacity to enter the Deed and that the Church applied undue influence and unfair tactics against him. Mr Magann seeks orders under the Contracts Review Act 1980 (NSW) in relation to the Deed and also submitted that the Deed should be set aside on grounds of unconscionable conduct.
Although the Church was the party moving the motion, it was accepted by counsel for Mr Magann that, procedurally, Mr Magann’s evidence would be called first and that the Church would then call evidence in reply.
Eight witnesses gave evidence at the hearing over three days. The following four witnesses gave evidence for Mr Magann

Darren Magann;

Dr Andrew Robertson, a psychiatrist who prepared reports in relation to Mr Magann on 10 August 2003, 26 September 2018, 2 February 2019 and 9 February 2019;

Leanne Magann, who was married to Mr Magann between 2001 and 2015; and

Herbert Weller, Mr Magann’s solicitor.

The following four witnesses gave evidence for the Church:

Dr Doron Samuell, a psychiatrist who prepared reports in relation to Mr Magann on 3 October 2018, 26 February 2019 and 8 March 2019;

Michael Salmon, the director of the NSW Professional Standards Office of the Catholic Church between 2003 and 2018;

Paul Davis, special counsel to the Office of Safeguarding and Professional Standards for the Catholic Diocese of Parramatta;

Shane Wall, an independent facilitator engaged by the NSW Professional Standards Office of the Roman Catholic Church to facilitate the Towards Healing complaint lodged by Mr Magann.

The following affidavits were read (subject to rulings on objections):

Darren Magann, affirmed 25 May 2018;

Darren Magann, affirmed 28 December 2018;

Leanne Faye Magann, sworn 7 December 2018;

Michael Salmon, sworn 12 September 2018;

Paul Davis sworn, 12 September 2018, 3 October 2018 and 30 January 2019;

Shane Wall, sworn 13 September 2018, 3 October 2018 and 31 January 2019;

Steven Mark Hunt, sworn 28 December 2018.

Some of these affidavits annexed a large number of contemporaneous documents. Ms Robyn Bailey’s report was of some importance. Ms Bailey was appointed on 21 March 2007 by the Professional Standards Office of the Church as an Assessor of the complaints of Mr Magann against Fr McGloin and Dr Eijkmann. She was provided with a bundle of documents by the Office, conducted a number of interviews and produced a report which addressed each of the allegations in turn and stated her conclusion. Ms Bailey was not called as a witness. Reports from Dr Zolfaghri (for Mr Magann) and Dr Boettcher (for the Church) were also tendered.
There were a number of significant factual disputes arising on the evidence but they broadly fell into two areas: what happened at a “settlement” meeting at Blacktown on 16 October 2007 and what was Mr Magann’s mental state at the time of that meeting. In order to determine these and other factual disputes, it is necessary for me to assess the evidence of witnesses who were endeavouring to remember events that occurred 12 years ago. I have had regard to the observations of Sackar J in Campbell v Campbell [2015] NSWSC 784 at [74] and [76] where his Honour observed:

“A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].”

Accordingly, I propose to place greater weight upon contemporaneous documents where available in the fact-finding process.
The facts I set out below are somewhat lengthy but it is necessary for me to consider the circumstances surrounding the Deed in some detail in order to consider the questions raised in this application. As Kiefel CJ, Bell, Gageler, Keane and Edelman JJ stated in Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [41]:

“In any case where a transaction is sought to be impugned by the operation of vitiating factors such as duress, undue influence, or unconscionable conduct, it is necessary for a trial judge to conduct a ‘close consideration of the facts ... in order to determine whether a claim to relief has been established’ [footnote citation: Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [14]].”

Facts

The alleged assaults

Mr Magann was born on 19 June 1971. He grew up in Tregear in Sydney’s West. He was raised in a Roman Catholic Family. His father was an acolyte. He was baptised, confirmed and regularly celebrated weekly mass through the Roman Catholic Church. In 1982, Mr Magann became an altar boy at the Holy Family Parish in Emerton.
Mr Magann alleges that from about 1983, when he was 12 years of age, through to 1991, Fr Michael McGloin regularly and repeatedly sexually abused him while he was entrusted to his care, custody and control.
From 1984, Fr McGloin started work as an assistant priest at the Holy Family Parish in Mount Druitt. Mr Magann told Ms Bailey that “all the children at the church used to regard Fr McGloin as a role model and thought of him as a ‘cool dude’.” He remained there until 1986 when he was transferred to the Springwood Parish. Mr Magann claims that the sexual abuse perpetrated by Fr McGloin typically involved him cuddling him and speaking to him intimately. He would lie in bed with Mr Magann, talk intimately, kiss his neck and blow in his ear. He would feel Fr McGloin’s erect penis against his buttocks. On occasions, Fr McGloin would place his hands on Magann’s buttocks.
Mr Magann alleges that Fr McGloin regularly allowed him to stay overnight in one of his residences or his caravan. He also alleged that on one occasion, Fr McGloin encouraged another “young man” who was a member of the parish, to accompany Mr Magann to Fr McGloin’s house at Kurrajong under the pretext the two boys might engage in sexual conduct together.
As Ms Bailey notes in her report, “… Mr Magann does not allege that McGloin ever engaged, or tried seriously to engage, in sexual intercourse, fellatio or masturbation with him.”
Fr McGloin denied the allegations when interviewed by Ms Bailey. He stated that he did not have any personal contact with Mr Magann until 1990 (when Mr Magann was 19 years old).
Mr Magann also alleges that from about 1987 through to 1989, Dr Hank Eijkman, who was an assistant priest to the parish, regularly and repeatedly sexually abused him while he was entrusted to his care, custody and control.
Dr Eijkman came to the Holy Family Parish in 1987 as a new assistant. Ms Bailey describes in her report that he befriended the Magann family during 1987 to 1988 and was a regular visitor at the Magann home. Mr Magann alleges, inter alia, that Dr Eijkman masturbated and fellated him against his will and without his consent.
Mr Magann’s evidence was that he left school, St Dominic’s College at Penrith, in 1987 while in year 10. He began working as a law clerk at Garfield Barwick Chambers. He later worked for Woolworths for approximately 10 years, after which he took a job selling mobile phones and pagers.
Mr Magann described himself as being, from the age of 18 years of age, “a wreck”. He abused alcohol to such a degree that, at certain periods, he claims that he was drinking “maybe two” bottles of bourbon a day. In his evidence he said he had “always had an alcohol problem since I’ve been sexually abused”.
It is common ground that Mr Magann suffers from post-traumatic stress disorder (“PTSD”).

First complaint to authorities

Mr Magann first reported the alleged abuse to police on 6 July 1994 when he was 23 years of age. He was questioned about this in cross-examination. He said he remembered making a statement that Frs McGloin and Eijkmann had sexually abused him. He accepted that in 1994 he had a good recollection of what happened to him and that his statement was a detailed account. He added:

“I also remember that the Catholic Church told me that they will look after Michael McGloin, to leave Michael McGloin. That’s why there were no charges brought against him. Paul Davis, along with Kevin Manning, told me to leave McGloin alone and they will look after him. So I only had a chance against Hank Eichmann sexually abusing me. That’s why you said about an hour ago there were no charges. There has been none because the Catholic Church told me they would look after - they will - how do you say - discipline - they'll belt him up, in other words, what I'm trying to say.”

Mr Magann explained that he was speaking figuratively when using the expression “belt him up”.
There was no evidence as to what happened to Mr Magann’s police complaint. No criminal proceedings were ever commenced and no evidence was adduced as to why that was.
In about 2000, Mr Magann started his own landscaping business. It lasted only a year. Mr Magann’s evidence was that “I fizzled out … thanks to the Parramatta Diocese”. At some point during this period Mr Magann did so-called “pilot work”, namely escorting oversized loads and heavy machinery on the roads. He says he “lost all that work” because he was too angry and had “nearly punched out blokes”.

First complaint to the Church

In approximately March of 2002, Mr Magann started seeing a psychologist, Judith Carroll, whom he saw “maybe three or four times”. He stated that he stopped seeing her because Bishop Wright and Mr Davis “wouldn’t pay the bill anymore”. He appeared to accept in his evidence that seeing Ms Carroll was good for him: “She brought a lot out because she hated the Catholic Church as well,” he said. It is unclear on the evidence as to when it was that the Church started or ceased paying for this counselling.
On 5 July 2002, when he was 31 years old, Mr Magann lodged a pro forma statement of complaint form with the Church’s Professional Standards Office. At the hearing, Mr Magann was adamant that it was not his handwriting on the form and that he could not remember whose it was. He appeared to accept that it was his signature and also appeared to accept that Ms Paula Kerr assisted him in preparing it.
Mr Magann’s complaint to the Church was against Fathers Eijkman and McGloin and stated to be in the nature of “emotional, psychological w sexual assault by both priest’s over a 6 to 7 yrs period [sic].” Mr Magann indicated that he expected four outcomes:

A written and verbal apology from both men;

Charges to be brought against both men;

Financial compensation for suffering; and

Counselling for both himself and his wife.

Mr Magann also noted on the form that he had notified the police of his complaints.
On 13 August 2002, Mr Magann wrote a letter of demand to Bishop Manning seeking $10,000 for every year Fathers Eijkman and McGloin had “ruined” his life. The letter was typed by Mr Magann’s ex-wife, Leanne. At the hearing Mr Magann accepted that he remembered the letter and stated that he “100%” wrote it. In the letter, Mr Magann claimed the abuse had occurred while the priests were under the jurisdiction of the Parramatta Diocese. He stated that it was his intention to have the matter dealt with immediately. He wrote that, should he not receive notification immediately, he would be forced to take legal action.
Mr Herbert Weller, Mr Magann’s solicitor, attended a meeting on 6 November 2002 with Mr Magann, Bishop David Walker and Mr Bill D’Apice. His recollection is that at the meeting Mr Magann at one stage responded to something said by the Bishop by saying, “If you don’t take that back, I’ll pick you up and throw you out that fucking window”. The meeting concluded shortly afterwards.
Mr Magann was cross-examined about the letter and lodging that complaint. He alleged that, at that time, he had been told by Mr Davis and Alex Kohn that “they would not help me or do anything for me whilst I have a solicitor or legal persons helping me.” He says he “batted” on his own. He further alleged that Mr Davis and Bishop Manning told a counsellor, whom Mr Magann and his wife had briefly seen for counselling sessions, that “they want to know what I was saying, and what I was trying to do to the Catholic Church”. Mr Magann said “that’s why I stopped going to counselling.”
Mr Magann was also cross examined about his expectations for financial compensation in the 2002 complaint. Mr Magann rejected the proposition that he understood that there were two different ways he could possibly get compensation. He also denied that he wanted a lump sum of compensation stating, “No, no. Not at all. I wanted Eichmann [sic-Eijkman], and what’s his name, I wanted Eichmann and McGloin in gaol. Point blank.” He said he spoke to Mr Davis and Mr Kohn but “none of them helped … They were just too busy, what’s the word? Making matters worse for me. They were making my life a living misery.”
Mr Magann rejected the proposition that, when he wrote his letter to Bishop Manning in August 2002, he was seeking $100,000 on the basis of $10,000 for every year McGloin and Eijkman had ruined his life. He says he “was hoping that the diocese of Parramatta would do more than they did. They didn’t pay me a lump sum money [sic]”. He said he “wanted McGloin and Eichmann [sic] in gaol, and I told Davis and Kohn that”. Mr Magann referred to the fact his case is ongoing and that “we don’t know” the sum “because the case hasn’t finished yet”.

The District Court proceedings

Mr Magann filed his first statement of claim in the District Court on 19 May 2003. On 7 August 2003, he was examined by Dr Andrew Robertson, consultant forensic and general psychiatrist, for the purposes of obtaining a report for the litigation. I shall return to the contents of that report later in these reasons when considering the question of Mr Magann’s capacity.
On 26 October 2003, Mr Magann made a second complaint to police. It was common ground that no further action was taken by police at this time either.
On 7 January 2004, Mr Magann filed a notice of motion in the District Court seeking an extension of time. It was replaced by an amended notice of motion, filed on or about 4 June 2004, claiming “[t]hat pursuant to sections 58(2), 60C(2) and/or 60G(2) of the Limitation Act the limitation period for the bringing of the cause of action herein be extended.”
The application was heard by Judge Sorby on 13 October 2004. Mr Magann gave evidence in those proceedings. There was no tutor appointed on his behalf nor was any question of competence raised in those proceedings.
His Honour gave his decision on 12 November 2004. As stated above, the Church sought leave to appeal this decision.

The Court of Appeal’s decision

In the Court of Appeal, Mr Magann was represented by Mr David Russell SC (as his Honour was) and Mr Porthouse of counsel. The Church’s application was heard on 16 September 2005. Mr Magann recalls that he did not attend the hearing because Mr Porthouse had said to him, “Don’t go. You'll probably get angry”. Judgment was delivered on 4 November 2005. As stated above, Giles JA (Hodgson JA and Hunt AJA agreeing) held that leave to appeal should be granted to the defendants, the appeals should be allowed and the grant of an extension of the limitation periods should be set aside. As Giles JA explained in at [4]:

“Mr Magann’s claim was subject to the limitation periods in the Limitation Act 1969 (‘the Act’). There were in the statement of claim a number of causes of action caught by the Act, if each occasion of sexual abuse was a battery and depending how the negligence was said to have caused psychiatric injury. Until Mr Magann reached 18 years of age on 16 June 1989 the running of the limitation periods was suspended (ss 11(3)(a); 52(1)). So far as any of the causes of action accrued prior to 17 June 1989, the limitation period was six years and expired on 16 June 1995 (s 14(1)(b)). So far as any of the causes of action accrued thereafter and prior to 1 September 1990, the limitation period was six years and the last limitation period expired at the latest on 31 August 1996 (ibid). So far as any of the causes of action accrued on or after 1 September 1990, the limitation period was three years and the last limitation period expired at the latest at the end of 1994 (s 18A(1), (2)).”

Mr Weller acted for Mr Magann at this time. Mr Magann accepted in his evidence that he met with Mr Weller on various occasions and spoke to him on the telephone to discuss the case and to get the statement of claim ready to file. He said he thinks he met with a barrister, Mr Anthony Porthouse, once “at Herbert’s office” and once at the Parramatta courthouse prior to the hearing before Judge Sorby.

The “Towards Healing” process

On 8 December 2005, Mr Weller wrote to the Church’s legal representatives. He stated that, notwithstanding the Court of Appeal’s decision, Mr Magann wished “to be considered for appropriate compensation” and that he was “instructed to propose a Mediation Conference with an experienced Mediator to effect a fair and compassionate resolution of the matter”.
Sometime later, by way of a letter dated 21 March 2007, Ms Robyn Bailey was appointed by the Church to assess Mr Magann’s complaints against Dr Eijkmann and Fr McGloin. She was asked to investigate and report on whether there were grounds for concluding on the balance of probabilities that his complaints were justified either totally or in part. In doing so, she had regard to the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362; [1938] HCA 34.
On 28 March 2007, Ms Bailey attended an initial briefing at the Professional Standards Office. She was given a bundle of documents relevant to her inquires. She subsequently conducted a series of interviews with Mr Magann, in person and by phone; Mr Magann’s legal representatives, including Mr Russell and Mr Weller; Mr Greg Walsh, solicitor for Dr Eijkman; Fr McGloin; and Peter and Susan Magann.
In reviewing the evidence, Ms Bailey noted that Fr McGloin’s assertion that he did not have regular contact with Mr Magann until 1990 was “undermined significantly by the evidence of Mr and Mrs Magann Snr”. Although it might be reasonably expected that Mrs Magann would support her son, Ms Bailey noted that “it became apparent … during the course of the investigation, that Mr Magann is essentially estranged from his family.” She found that there was “no reason to infer” that Mrs Magann’s evidence was “biased or unreliable”.
Ms Bailey found that, on balance, Mr Magann did visit the presbytery on occasions during the time Fr McGloin was at the Holy Family Parish. There was, however, no evidence to corroborate Mr Magann’s account that he stayed overnight there. She also noted that when Fr McGloin was confronted with information that tended to undermine his first “adamant and definite” account, his second account was “far less adamant about certain aspects of the allegations”. Indeed, Ms Bailey noted, “he admitted hugging Mr Magann and blowing in his ear, having previously refuted it, although denied that there was any sexual motivation in his actions.”
In relation to the allegations against Dr Eijkman, Ms Bailey found that it was more likely than not that Dr Eijkman engaged in inappropriate conduct with Mr Magann, including: giving him money, allowing him to drink alcohol, taking him (while still a minor) to stay with him in his house in Leura without a chaperone and whilst there engaging in conduct of a sexual nature.
Her overall conclusion was as follows:

“Having considered the available evidence, and having made the above findings, I am of the view that, on the balance of probability, there are grounds for finding that Mr Magann’s allegations are justified.”

Ms Bailey’s report is dated 14 August 2007.

The fact finding process

The facts I have found thus far were largely not in dispute. The first significant dispute concerns the date upon which Mr Magann was provided with a copy of Ms Bailey’s report.

Provision of Ms Bailey’s report to Mr Magann

Contemporaneous documents show that on 31 August 2007 Mr Salmon sent Mr Davis some proposed redactions to Ms Bailey’s report (in relation to the personal details of various people). Mr Salmon’s evidence was that this was “so that we are able to forward a copy of the document to Darren Magann as soon as practicable”.
On 11 September 2007, Mr Magann met with Mr Salmon and Mr Davis at the Church’s Professional Standards Office in Sydney. Mr Salmon’s evidence was that he handed an edited version of Ms Bailey’s report to Mr Magann at that time. His copy of the report, which was produced in evidence, had the following words written on it: “Final edited version handed to DM at PSO on 11/9”. Mr Salmon also prepared a contemporaneous file note on the day recording the meeting.
Mr Magann claims not to have received Ms Bailey’s report until seven to nine days after the subsequent “settlement” meeting. Mr Magann’s evidence was that “I did not see the report of Miss Robyn Bailey until about a week after receiving the payment of compensation of $95,000 provided for in the deed of release”. He repeated in cross-examination that he had only received the report a week after payment was made.
Mrs Magann’s evidence was also that she had a “clear recollection” of Mr Magann receiving the report of Ms Robyn Bailey after the meeting held on 16 October 2007. She stated “I remember him saying to me, ‘[t]his is the first time I have seen this report. At last someone believes me.’” As to timing she stated:

“Q. When did you see the report, of Robin Bailey?
A. I came home from work, Darren was sitting in - on the edge of the bed in our bedroom and I walked in and that is when I saw it, he handed it to - to me and told me what it was.
Q. Can you help as to the timing‑‑
A. That was after the meeting.
Q. How long after the meeting, are you able to say?
A. At least - at least a week, at least.”

The evidence of both Mr Davis and Mr Salmon was that Mr Magann was given a redacted version of the Assessment Report of Ms Bailey at the meeting on 11 September 2007 when Mr Magann attended the Professional Standards Office.
Mr Wall also gave evidence that he spoke to Mr Magann in the days leading up to the settlement meeting. His evidence was that, on the first occasion they spoke about the meeting, Mr Magann said to him that he would only attend the meeting if he received $150,000 in settlement. Mr Wall suggested that he speak to his lawyer. The second time that Mr Wall spoke with Mr Magann about the meeting Mr Magann told him that he had spoken to Mr Weller and Mr Russell and had been advised to attend the meeting and seek a resolution and also to ensure that a Deed of Release was prepared and payment made within seven days.
The evidence of both Mr Salmon and Mr Davis was that before the meeting they discussed a settlement in the range of $70,000. This was considered to be reasonable compared with other cases at that time, having regard to the seriousness of the allegations.

The Blacktown meeting

Putting to one side for the moment the question of whether Mr Magann was provided with a copy of Ms Bailey’s report before the meeting, the settlement meeting was held on 16 October 2007. An issue arose at the hearing as to precisely where the meeting took place. The witnesses for the Church gave evidence that it took place at the Blacktown Travelodge whereas Mr Magann insisted it took place at the Blacktown Sports Club. Given that both venues are next door to each other and serviced by the same driveway I do not consider it necessary to make any particular finding on this issue.
Present at the meeting were Mr and Mrs Magann, Mr Wall and Mr Davis. There were a number of disputes as to what was said at the meeting and what Mr Magann’s demeanour was at that time.
Mr Magann’s evidence was that Mr Davies said at the meeting that Fr McGloin “was a bit light-fingered and we know that his history isn’t good”. He also claimed that Mr Wall said “I don’t want you to come back ever again” as well as “[look] these cases only go for about $40,000, take the $85,000 that you’ve been offered”. Once the offer of $95,000 was made, Mr Magann stated that Mr Wall said “I don’t want to be here all day take this offer as you won’t be getting anymore. Take it and try and live the best life you can. That’s all you’re getting, if you want this money you have to take the deed back to Herbert Weller and get it signed and back to me today and I will make sure the $95 000 is in your bank account by 5:00pm”.
Mrs Magann’s evidence was that Mr Davies told Mr Magann that he had to sign the Deed the day of the meeting and that Mr Magann was a “rollercoaster of emotions”. She described him as “aggressive” and “confused about what was being said”. She also described him thumping the table at one stage.
Mr Wall’s evidence was that Mr Magann was polite and respectful at the meeting but expressed disappointment at the initial offer of $85,000. Mr Wall stated that Mr Davis left the room to make a few phone calls. When returning, Mr Magann was offered another $10,000 and accepted, apparently “satisfied with the offer and happy with the outcome”. Mr Wall also stated that he said to Mr Magann that “[y]ou will have to have the Deed explained to you by your solicitor before any settlement is finalised.” To Mr Wall’s observation, Mr Magann did not appear angry at this meeting. Mr Wall denied telling Mr Magann that he should immediately take the offer.
Mr Wall denied that he ever said to Mr Magann during the negotiations that “these cases usually go for $40,000, take the $85,000 which you have been offered”. Mr Davis and Mr Wall both gave evidence that each of them was not aware that Mr Magann was suffering under any special disadvantage. They also submitted that objectively the settlement figure was at the upper end of the Church’s range having regard to the seriousness of the allegations of abuse.
Mr Davis also denied the allegation that the Diocese did not want to pursue charges against Fr McGloin or that he said that Fr McGloin’s history was not good. He described Mr Magann’s demeanour in the meeting as being “respectful” and that he spoke coherently and articulately through the day. He denied that he specified any time that the Deed needed to be signed by.

The provision of legal advice by Mr Weller

Following the meeting at which he received the Deed, Mr Magann drove to Mr Weller’s office in Windsor.
Mr Weller’s evidence was that he saw Mr Magann in his office on 16 October 2007. He stated that he was not privy to the settlement conference which Mr Magann had attended at the Blacktown Sports Club. His evidence was that Mr Magann said to him that he had been told by Mr Davies that he had to sign the document on that day so that he could receive a lump sum of $95,000 in his bank account on that day by 5:00pm.
Mr Weller stated that when Mr Magann told him that the Church had offered him $95,000, he told Mr Magann, “The Court of Appeal has said you are not entitled to anything. This must be a gift from God. A pound out of the Poor Box.”
He was cross-examined about this evidence at the hearing and the following exchange took place:

“Q. And you knew that on 16 October there'd been a settlement conference that had taken place between he and the church, seeking to resolve his complainant against the church.
A. Yes.
Q. And you had been his solicitor at that point for at least three or four years.
A. Yes.
Q. And you'd been his solicitor in connection with, the very subject matter of the settlement conference which was his claim for payment from the church in relation to the abuse that he'd suffered.
A. Yes.
Q. And when he went to you and said I've been offered $95,000 you must have understood that, one of his expectations was for you to tell him whether you thought that was something that he should accept.
A. Well, I'll repeat what I've already said, he'd already accepted it he was going to be paid $95,000 when he got this document signed by himself and myself and he returned it to the church.”

Mr Weller’s evidence was that at this time Mr Magann was standing on the other side of the desk. He agreed that he would have looked at the Deed in order to find out what it was. He said that he did not pay much attention to the details of Mr Magann’s obligations to the Church under the Deed. The following exchange explains why he took that position:

“Q. If you go to the following page, page 64 in the bundle. When you signed this, you would have understood that he had various obligations under the deed as well - sorry, in addition to the obligation of the diocese to pay the $95,000?

A. I didn't pay any attention to these things, they were insignificant to me. He had no rights, he had no rights against the church, they were offering $95,000 and I didn't spend much time with him at all that day.
Q. So, you thought this was a very good deal and he should be accepting it?
A. If he could get any money out of the church, it would be helpful for him.
Q. Sorry?
A. It was helpful for him.
Q. You said, you tell us in your affidavit, that you said to him‑‑
A. A gift from God.
Q. So‑‑
A. A pound out of the poor box.
Q. So, really, what you were intending to convey to him was that he should accept this offer?
A. Well, he'd already accepted it, he just needed this document signed.”

Mr Weller further confirmed that his attitude to the signing of the Deed was not to give advice but to witness the document. This is because there had already been a District Court proceeding and a Court of Appeal hearing that had found that Mr Magann had no rights against the Church. Thus, his approach to Mr Magann was “[look] Darren, you're not entitled to anything you should be taking that $95,000, take it and run."
The Deed was then signed by Mr Magann and witnessed by Mr Weller.

The terms of the Deed

The Deed is dated 16 October 2007. Given its prominence in the present application, it is necessary to set it out in full.
The recitals to the Deed are as follows:

“A. Mr Magann registered complaint with the New South Wales Police amounting to allegations of sexual assault in the period 1987 – 89 against Fr Henk Eijkman in July 1994.
B. Mr Magann. registered a Statement of Complaint with the NSW Professional Standards Office on 9 July 2002 against the then Fr Henk Eijkman and Fr Michael McGloin now retired) regarding allegations of psychological and sexual assault which spanned over the period of 1981-89.
C. Mr Magann commenced civil proceedings in the District Court of New South Wales against the Trustees of the Roman Catholic Church of the Diocese of Parramatta &Ors No 2134/03 seeking damages fro [sic] negligence and breach of duty of care in respect of the alleged assault (the Proceedings).
D. In his decision of 12 November 2004, Sorby, J [sic] granted leave for Mr Magann to file a Statement of Claim out of time. This decision was subsequently the subject of Appeal. On Appeal Mr Magann was denied the opportunity to commence proceedings for negligence and breach of duty of care against the Trustees of the Diocese of Parramatta and Ors.
E. The Professional Standards Office in collaboration with The Diocese of Parramatta commissioned an Assessment of the complaints of Mr Magann in March 2007. This process of investigation was completed and a report was prepared dated 14 August 2007.
F. The Diocese, without admitting liability, and Mr Magann have reached agreement on the terms set out in this Deed.”

The following terms are defined in cl 1:

“‘Claim’ means and all actions, obligations, sums of money, accounts, charges, claims, investigations, demands, suits, proceedings, causes of action, damages, debts, costs, verdicts and judgments whatsoever whether at law or in equity or under any statute, arising under any award, enterprise agreement or this instrument made or approved under any law but does not include any claim that may be brought pursuant to workers’ compensation legislation.
‘Complaint’ means all matters, issues and allegations of psychological and sexual abuse registered by Mr Magann.
‘Diocese’ includes the Bishop of Parramatta, all prior and future Bishops of Parramatta, all former and present clergy of the Catholic Diocese of Parramatta, the successors and assigns of the Trustees of the Catholic Diocese of Parramatta.
‘Mr Magann’ includes the successors, assigns and estate executors or administrators of Mr Magann.”

Clause 2 deals with the obligations of the Diocese:

“Provided that a copy of this Deed is dulv signed by Mr Magann. the Diocese shall:
2.1 Within seven days of receipt of an executed copy of this Deed, provide payment to Mr Magann the amount of $95,000 (ninety five thousand dollars).”

Clause 2.1 was amended by hand. The time for payment was originally 28 days but was changed, according to Mr Magann’s oral evidence, to seven days at the October 2007 meeting. Further, the settlement amount of $95,000 was handwritten. The amendments each are initialled by Mr Davis and Bishop Manning, so too is every page of the Deed.
In cl 2.2, the Church undertook not to make any adverse comments, publically or otherwise, about Mr Magann and, in cl 2.3, to take reasonable steps necessary to give effect to the terms of the Deed and to bear its own legal and other costs.
Mr Magann’s obligations are set out in cl 3 as follows:

“Obligations of Mr Magann
Provided that a copy of this Deed is duly signed by the Diocese by 31 October 2007, Mr Magann shall:
3.1   Release and discharge the Diocese from all actions, suits, claims and demands of every description past present or future relating to or arising from the Claim or the Complaint or any other matters set out in this Deed.
3.2   Not make any adverse comments, publicly or otherwise, about the Diocese, its related agencies, the Bishop, the Trustees of the Diocese, the clergy, employees or agents of the Diocese and its related bodies corporate;
3.3   Take all steps necessary to give effect to the terms of this Deed including but not limited to executing any further deed required by the Diocese to give effect to the release in clause 6.
3.4   Agree to indemnify the Diocese against the recovery or repayment of any social services or victim's compensation awarded to Mr Magann.
3.5 Acknowledge the requirement of the Diocese to make payment to Medicare Australia as prescribed by the Health and Other Services (Compensation) Act (Clth) 1995 and that he has been advised of a possible liability to pay any amount under the Act or under the Health and Other Services (Care Charges) Act (Clth)199S.
3.6   Authorise the Diocese to deduct from the sum referred to in clause 2.1 and to pay Medicare Australia any amount as prescribed by the Health and Other Services (Compensation) Act (Clth) 1995 and to pay any amount that may be payable or refundable to that entity pursuant to the legislation referred to above.
3.7   Bear his own legal and other costs.”

Clause 4.1 provides that each party is required “to act in good faith regarding the preservation of the confidentiality of this matter” (with limited exceptions in cl 4.2).
Clause 5 is headed “Release”:

“5.1   Mr Magann releases the Diocese, its related agencies, its current and future Bishops, trustees, clergy, officers, employees and agents from all actions, suits, claims and demands of every description past present or future relating to or arising from the Claim or the Complaint or any other matters set out in this Deed.
5.2   The Diocese may plead this Deed in bar to any claim or proceeding by Mr Magann or any person claiming on his behalf in respect of the Complaint or any related matter.
5.3   Mr Magann acknowledges that by accepting the payment specified in this Deed and executing this Deed he is not entitled to make any further approach to the Diocese for assistance, damages or otherwise.”

In cl 6.1(a) Mr Magann warranted that he had read and understood the terms of the Deed and had obtained independent legal advice about its terms and effect. In cl 6.2(b) it is recorded that the Diocese understands that Mr Magann is relying on these warranties.
Clause 7 provides that Mr Magann acknowledges three things. First, that the agreement recorded in the Deed does not represent an admission of liability by the Diocese: cl 7.1. Secondly, that upon receipt of the payment referred to in cl 2.1, he will have received all payments and benefits he may be entitled to receive in connection with the Complaint, the Proceedings or any matter incidental to the Complaint or the Proceedings: cl 7.2. Thirdly, that the Deed shall be binding on all parties and its benefit shall extend to all persons referred to throughout the Deed even though they are not parties to it or have not signed it and that these circumstances shall not prejudice their right to rely on the Deed: cl 7.3.
Clause 8 is a standard severability clause providing that “[p]art or all of any provision of this Deed that is illegal or unenforceable may be severed from this Deed and the remaining provisions continue in force”.
Finally, cl 9 provides that the Deed is “governed by the law applicable in New South Wales.”
The Deed was executed by Bishop Manning on behalf of the Diocese of Parramatta. His signature was witnessed by Mr Davies.

Contemporaneous documents

There are a number of contemporaneous documents concerning what happened after the Deed was signed by Mr Magann and Mr Weller.
Mr Magann returned the Deed on 16 October 2007, the same day he signed it. He sent an accompanying letter to Bishop Manning, handwritten in the following terms:

“Dear Bishop Manning
Enclosed is the signed ‘Deed of Release’ by both myself + my solicitor Herbert Weller.
I would ask that you return to me a signed copy of this in the Express Post envelope provided asap.
I hope that we can put this behind us and start ‘fresh’ and I hope that in the near future we may be able to sit down and chat over a cup of tea.
Remaining Yours
DARREN MAGANN”

Mr Magann contends that on that same day Bishop Manning wrote to him forwarding him a copy of Ms Bailey’s report. He asserts that the letter included the words “I understand that you have received an extract of the report completed by Ms Robyn Bailey who I engaged to undertake a comprehensive assessment of your claim.” He asserts that he did not receive this latter and report until a week later. No copy of this letter has been produced by Mr Magann.
Early on 17 October 2007, (the day after the Blacktown meeting), Mr Wall sent an email to Mr Davis confirming the outcome of the previous day. After recounting who was in attendance, Mr Wall outlined the purposes of the meeting:

“The meeting was convened to seek to bring to resolution outstanding issues and grievances relating to Darren’s Towards Healing complaint and relating to abuses as detailed in the Assessment Report prepared by Ms Robyn Bailey and regarding Fr Michael McGloin and (former priest) Dr Henk Eijkman.”

Mr Wall then set out his account of what occurred at the meeting:

“Paul Davis presented a letter of acknowledgement signed by Bishop Kevin Manning regarding the complaint and impact of the abuse. Darren and Leanne read the letter and Darren was appreciative of the gesture.
Darren stated that he wanted $150,000 in recognition of the abuse by McGloin and Eijkman and to fund future counselling.
He produced a current Medicare Australia Notice of Charge which indicated ‘Nil Obligations’ payable as reimbursement to the Government dated 12th October (ref: 50272263N). The Notice is valid until 12th October 2008.
Paul Davis produced and explained in detail a Deed of Release and stated that no resolution would be considered or recognised until and unless Darren signed such Deed and obtained independent legal advice before executing the Deed. It was explained that the implication of signing the Deed gave effect to resolution of his complaint and no further action could be reactivated or revisited.
Darren requested that, if resolution was achieved, payment be effected within 7 days rather than 28 days.”

Mr Wall then described in the email that, after negotiations, the matter was resolved as follows:

“1.   Acceptance and appreciation for the letter of acknowledgement by Bishop Kevin Manning relating to the abuses as detailed in the Towards Healing documentation.
2.   Payment of the settlement amount of $95,000 in recognition, and full resolution, of Darren Magann's complaint.
3.   Settlement conditional on:
(a)   Execution of a Deed of Release; and
(b)   Darren obtaining independent legal advice as to the implications of signing the Deed before executing it.
4.   Medicare obligations calculated as nil. It is expected that the document provided by Medicare Australia (ref [XXXXX XXXX]) will suffice to obviate the need to forward an ‘Advance Payment’ of 10% of the settlement to Medicare Australia. However, Paul Davis emphasised that, if required, 10% may need to be forwarded to Medicare to comply with Advance Payment obligations.
5.   Payment of settlement amount to be made within seven (7) days of receipt of a signed copy of the Deed of Release witnessed by Darren’s legal adviser. Payment to be made to the following Bank details:
Account Name: Darren Magann (Savings Account)
Bank: ANZ
BSB: [XXXXX X]
Account: [XXXXX XXXX]
6.   Darren said that he understood the implications of signing the Deed of Release and wanted to sign the document at the meeting. Notwithstanding this, Paul Davis stated clearly that Darren needed to obtain his own independent legal advice before signing.
7,   Darren accepted the Deed of Release with the settlement amount of $95,000 inserted and the time frame for deposit of funds as seven (7) days.
8.   At 4:30pm on 16th October, Darren phoned the facilitator and advised that he had attended the law office of Herbert Weller and had:
(a)   obtained independent legal advice;
(b)   had executed the Deed of Release in the presence of Welter and witnessed by the latter;
(c)   will forward the signed Deed by Express Post to the Diocese of Parramatta tomorrow (17/10/07).”

Mr Wall noted that “the facilitation meeting concluded on a very civil and courteous basis, with Darren expressing both satisfaction with, and gratitude for, the facilitation process”. He also noted that Mrs Magann expressed similar sentiments. Mr Wall indicated that he considered the matter to be concluded.
Approximately 20 minutes later, Mr Wall sent an email to Mr Magann in these terms:

“Dear Darren,
I write to confirm that your Towards Healing facilitation matter was resolved at out meeting in Blacktown yesterday.
You agreed to settle at $95,000 in full recognition of your complaint. I also confirm that you have forwarded a signed Deed of Release, witnessed by your legal advisor Herbert Weller, to the Diocese of Parramatta. It was agreed that you will receive the settlement funds within 7 days of receipt by the Diocese of the executed Deed.
You have also indicated to me that you will fax to me a copy of a letter you have written to the Bishop expressing your hope and desire of a new and reconciled relationship with the Bishop now that this matter is resolved.
Darren, may I take this opportunity to thank you for the manner in which you conducted yourself throughout this process. You were respectful and acted with great dignity. A warm thank you also to Leanne who, I believe, supported you with honesty and genuine wisdom.
Yours sincerely,
Shane Wall”

Mr Wall copied the email to Mr Davis and Mr Salmon. He indicated that he would fax them a copy of Mr Magann’s letter.
On 19 October 2007, Mr Wall sent an email to Mr Salmon. He wrote that Mr Magann called him the previous night “to say that he had received the settlement amount paid into his account”. Mr Wall noted that he “was thrilled and said that he could now move on with his life”. He also noted that “[t]he Bishop was very gracious to facilitate a speedy resolution to this.”

The timing of the payment

Although it was common ground that the Church made the payment of $95,000 to Mr Magann, a dispute arose as to when that payment was received. The Church records show he was paid on or around 18 October 2007 whereas Mr Magann insisted that he was paid on the same day as the settlement, namely 16 October 2007.
The relevance of the timing of the payment is that Mr Magann asserted that pressure was put on him in the meeting to accept $95,000 by the promise of receiving it that same day. During the hearing, Mr Magann became quite agitated and made a number of attempts to obtain bank records to disprove the evidence of the Church as to the timing of the payment. He was unable to do so. In light of this, as I have stated above, at the conclusion of the hearing I afforded him some extra time to do so.
Following those orders, an affidavit of Darren Magann sworn on 16 April 2019 (with annexures) and an affidavit of Lisa Leslie sworn on 16 April 2019 (with annexures) were forwarded and relied upon by Mr Magann and an affidavit of Alexander Kohn sworn on 16 May 2019 (with annexures) was relied upon by the Church.
The file note at [105] above suggests that the money went into an ANZ account. The Church’s recent correspondence suggests it went into a NAB Account. Mr Magann’s most recent evidence is that this nominated NAB account was not opened until 4 March 2013. The ANZ Bank, both at Windsor and Martin Place, confirmed no record of payment of $95,000 but individuals at those banks (and Westpac) informed Mr Magann that records of accounts dating back more than seven years are not kept.
In short, Mr Magann was not able to provide any documentation to suggest he was paid on 16 October rather than 18 October 2007.

Factual findings on disputed issues

The resolution of the relevant factual disputes in this matter turns on the reliability of the various witnesses in the context of contemporaneous documentation.
It is necessary for me to first make an assessment of the evidence of Mr Magann. I have had regard to the expert evidence regarding the symptoms of PTSD when assessing his evidence. Mr Magann presented as an angry and damaged man. His PTSD symptoms were evident and he could barely suppress his rage at the way the Church has dealt with his complaints. As I understand this condition, the longer the period in which PTSD is untreated, the more difficult it is to be cured of it. It also seems to me that Mr Magann’s grievance stems not only from the alleged assaults but also his long fight for compensation and the position he now finds himself in; the previous legislative barrier to bringing court proceedings now having been removed.
It became clear during his evidence, that part of Mr Magann’s ongoing grievance is that the relevant priests were never prosecuted. There was no evidence before me as to why that was the case. Mr Magann asserts that it is the fault of the Church but that does not explain why police did not act on the statements he made to them. To the extent that it was necessary for me to do so, I am unable to make any finding on this issue
I am satisfied that Mr Magann is driven by a deep desire to put the past behind him and he considers the best way to do this is to receive a significant lump sum payment from the Church, and, also, to have the relevant priests prosecuted. Regrettably, his deep passion for this result was reflected in his evidence. Mr Magann was a difficult witness who continually volunteered non-responsive answers to criticise the Church at every available opportunity. When he was cross-examined he stated that he was “violated once more” by having to give evidence again. “We shouldn’t all be here,” he said. I am satisfied that he fully understood the questions being asked by him but he persisted to advance his own narrative, rather than answer the questions put to him in cross-examination.
A further difficulty for Mr Magann is that many of his assertions as to what occurred on and around 16 October 2007 are not consistent with the contemporaneous documents.
In the context of these observations I make the following findings.
I am satisfied that on or about 11 September 2007 Mr Magann met with Paul Davis and Shane Wall at the Professional Standards Office. The contemporaneous documents I have already described and the evidence of Mr Davis and Mr Wall confirm this. Mr Magann did not deny any meeting per se, he just suggested it was at a different time.
As for the provision of the redacted copy of the Bailey report, I am satisfied that it was provided to Mr Magann by Mr Salmon on 11 September 2007 at the Professional Standards Office at the meeting. There are contemporaneous documents that establish that on 31 August 2007 he sent Mr Davis some proposed reductions to that report “so that we are able to forward a copy of the document to Darren Magann as soon as possible”. Mr Salmon wrote on his copy of the report “final edited version handed to DM at PSO on 11/9”.

As was submitted by senior counsel for the Church, in order to reject the Church’s evidence on this issue I would have to make a finding that Mr Salmon falsely prepared a file note and knowingly made a false representation on his copy of the document at the time. This was not put to him in cross-examination. Such a finding would also require the rejection of the evidence of Mr Davis and Mr Wall.
As for the submission that if Mr and Mrs Magann had a copy of the Bailey report with them at the meeting it would have featured more prominently in discussions on that day, I am not persuaded that would necessarily be the case: the meeting was about quantum not liability.
I have paid close regard to the evidence of Leanne Magann. I have referred to her evidence above. She gave her evidence in a calm way and impressed me in the way she answers questions in cross examination. She was estranged from Mr Magann at the time she gave her evidence. Nothing about her evidence gave me the impression that she was intentionally given false evidence; on the contrary, she gave her evidence in a calm and forthright manner and was not evasive in any way. This leaves me with two possible routes by which to reconcile her evidence that Mr Magann first received the Bailey report after the Blacktown meeting and the contemporaneous documents showing that he did. Either Mr Magann was given the document beforehand but, for some reason did not read it, forgot about and then did not locate it until after the Blacktown meeting or she has honestly but unreliably reconstructed the incident where Mr Magann received the report after the meeting.
Mr Magann was unable to provide any evidence in the form of a letter, envelope or other document to establish that he was provided with the report by post after the meeting. Significantly, he did not contact the Church to complain that he had not received the Bailey Report until after the settlement in circumstances where he had no hesitation in corresponding with the Church to air other grievances.
Mr Magann relied heavily on a letter said to have been sent by Bishop Manning on 16 October 2007 in which the Bishop stated that he understood that Mr Magann had received “an extract” of Mr Bailey’s report. It was submitted on his behalf that this can only be construed as meaning Mr Magann received the report after the meeting. I am not satisfied that this is the only inference arising from the document. It seems to me this quite neutral in this regard. A copy of the Bailey Report provided to Mr Magann was tendered at this application. I note that the redactions are minimal and only to de-identify relevant persons.
For these reasons I am unable to accept that Mr Magann did not have a copy of the report before the meeting.
The next factual finding I am required to make is as to whether any pressure was put on Mr Magann at the meeting and what in fact was said at that meeting.
Mr Magann asserted that Mr Wall and Mr Davis told him that they did not wish to be there all day and to take the offer as “that is all you are getting”. Both men deny saying this. In any event the meeting lasted for 3-4 hours. It seems to me that the longer the meeting, the less likely there was an unfair pressure placed on Mr Magann. Although it may well have been the case that one or other of the men indicated that a higher amount would not be paid, that does not necessarily mean any pressure being put on Mr Magann.
I am also unable to accept Mr Magann’s evidence that he was told that if he wanted the money he had to get the Deed returned the same day. This is inconsistent with the amendment to the Deed, made at the meeting, that payment would be made within 7 days (rather than 28 days).
I have had regard to the likeliness of whether Mr Davis or Mr Wall would have said at the meeting that they did not wish charges to be brought against Fr McGloin and that they would make sure that he was dealt with. I am unable to accept the submission made on behalf of the Church that it would be “unlikely” that this was said, but in any event, I am not satisfied that this issue in and of itself could establish unjustness or unconscionable conduct.
It seems to me that the email sent to the Bishop by Mr Magann the following day (extracted above at [101]) to tell against Mr Magann’s version of the settlement process. If Mr Wall and Mr Davies had behaved in the way that Mr Magann now says they did, it is difficult to understand why Mr Magann would have written such a positive email to the Bishop the following day when he returned the Deed and suggested they have a “cup of tea” sometime.
I am not satisfied that Mr Magann was told at the meeting that he was not allowed to have a copy of the Bailey report. This is inconsistent with the contemporaneous document showing that he was provided a copy of it on 11 September 2007.
As for Mr Magann’s demeanour at the meeting, although it may be the case that he started the meeting in the “calm” way that Mr Wall and Mr Davies describe, I find it difficult to accept that he was able to get through the whole meeting without losing his temper. This would be completely inconsistent with all of the medical reports and his long-standing PTSD which manifests itself in a short temper. Significantly, it is also contrary to the evidence of Mrs Magann. Her evidence is that at one stage he thumped the table during the meeting. It seems to me he may well have done so. The meeting went for 3-4 hours. The evidence of Mr Wall and Mr Davies was that Mr Magann was initially unhappy with the amount offered, but then was much happier with the increased amount. Mr Wall and Mr Davis had dealt with Mr Magann before. It may well be that Mr Magann was calmer than usual at the meeting. This does not mean that he did not exhibit anger and frustration at it, as Mrs Magann suggested.
I am not satisfied that Mr Magann was told that he was not allowed to bring a lawyer to the conference. Clearly Mr Weller was not in attendance during the meeting. The evidence of Mr Wall and Mr Davies was that Mr Magann told them that Mr Weller would not be coming but that he was available by telephone if needed. I find it difficult to accept that on the one hand the Church knew that Mr Weller was available for Mr Magann to speak with that day and required Mr Magann to go and speak with him, but on the other hand did not want a solicitor involved in any of the negotiations. Moreover, Mr Wall’s contemporaneous report on the meeting (see above at [105]) records that Mr Magann wanted to sign the Deed at the meeting but was told he could not until he spoke with Mr Weller. Mr Weller did not suggest in his evidence that Mr Magann was told that he could not have a lawyer at the meeting.
As for the question of whether Mr Magann received any legal advice, the evidence of Mr Weller is conclusive on this issue. I have summarised it above at [79] – [84]. Mr Weller explained to Mr Magann that he had no rights to give up in any Deed of Release. It is to be accepted that Mr Weller did not go through every clause of the Deed with Mr Magann including the warranty as to legal advice, but it is important to understand the context of the Deed. Mr Magann was not settling proceedings which were still on foot. He was not giving up any legal rights by signing the Deed; he had no legal rights to give up and he was very excited about getting the money. I am satisfied that no criticism should be made of Mr Weller at the time; he could not have anticipated an amendment to the Limitation Act.
As for the timing of the payment of the money, a significant amount of time was spent on this at the hearing and supplementary evidence was filed on this issue. Mr Magann obviously received the money. The Church records indicate he was paid on or about 18 October 2007. Mr Magann seeks to prove that he received it on 16 October. He was unable to do so. Given the Church records and the email from Mr Wall to Mr Salmon dated 19 October 2007, I am satisfied that Mr Magann received the money on or about 18 October 2007.

Later events

There was evidence that after Mr Magann was given the $95,000 the Church gave him some additional funding towards the end of 2007: $7,500 for a ute, $9,000 for a caravan and $24,000 for legal costs.
As to what occurred between 2007 and 2014, no evidence was provided but at some stage Mr Magann was interviewed by someone from the Royal Commission which led him to write the following typed letter to Mr Salmon on 21 January 2014:

“Michael iam writing to you in hope that you or the professional standards can reassess my towards healing again it has been pointed out to me that there was a great deal of wrongs with my case. Michael as you know michael mcglion and henk ikman along with other members of the church sexually mentally emotional abused me and they still do to this day i have spoke to other members of the catholic church and the Royal Commisiom about this matter Michael i will say this you as the director of the professional standards should off helped me more i don’t understand why you / the church didn’t give me the right help that i needed.Michael Salmon as i have spoke and called you a few times even after the church had payed me there was no help if you can recall i rang you ,you hade told me that there is no need for the professional standards to help anymore and in fact we don’t help we just rather you find yr own way and be happy with wote happens end of the day Michael i have bn told that the church has and had payed out the same money to victims, iam asking to be re assess my claim and keep in mind that there were TWO(2) catholic priests not ONE(l) .Michael what iam asking of you is to re assess is my payment for TWO(2) catholic priests not ONE(1) and to ask for some of the money from me paying my legals back wich was $23,000,00 Michael it is wrong of what the church has done to me but ONE DAY THERE WILL BE MORE PEOPLE THAT WILL COME FORWARD TO SAY mcgloin or ikman has abused me i hope that you and the church help them more than what you did for me”
(Sic, as in original.)

After this letter Mr Magann was given $23,000 for his legal costs in April 2014. In October 2014 he was provided (through another person) with $7,000 to help him buy a car and get accommodation. In May 2015 he was paid $3,131 for further legal costs and in December 2015 the amount of $2,535 was paid for his psychiatric assessment. In March 2016 the amount of $4,500 was paid for rent, the amount of $5,000 for legal costs, $3,000 was paid back to Medicare and the amount of $314 was paid for his bed. In June 2016 the amount of $186 was paid for his travel expenses and in December 2016 the amount of $25,989 was paid to his solicitor. In addition to these amounts, $11,500 was paid towards his rent payments. On my calculations, Mr Magann has been paid an amount of about $200,000 inclusive of the payment under the Deed.
Mr Weller attended a meeting on 2 May 2017 with Mr Magann, Mr Steven Hunt, Mr Davies and another colleague in relation to Mr Magann’s claim for further compensation. Mr Magann was very aggressive and Mr Weller stated “I sensed that Darren’s agitated, aggressive demeanour was very close to becoming out of control”. Mr Weller stated that Mr Davies said to Mr Magann “[w]e won’t be paying any more lump sum compensation but we might continue to assist you with some [sic] the services that you need”. Mr Magann then said “[t]hat’s not good enough for what has happened to me and for what I still have to put up with every day.” The meeting was then aborted after Mr Magann became very agitated.
On 21 August 2017, the present proceedings were commenced in this court.

The medical evidence

Dr Robertson

Dr Robertson was called as an expert witness for Mr Magann. He completed four reports relating to Mr Magann. Two were based on clinical examinations of the plaintiff. One examination took place on 7 August 2003 (for the District court proceedings) and the other on 26 September 2018. On the basis of his consultation with Mr Magann in 2003, he was asked to express his opinion about Mr Magann’s capacity as at the 2007 meeting. Mr Magann relies upon Dr Robertson’s report of 26 September 2018 in seeking to establish that he did not have the mental capacity on 16 October 2007 to decide whether or not to enter into the settlement on the terms set out in the deed of release.
Dr Robertson’s evidence-in-chief was that when he read Ms Bailey’s report in April 2007, it confirmed his belief that when he saw Mr Magann in 2003 “he was very much affected by alcohol induced brain injury” and he thought that “this was likely to have continued for the four years” between 2003 and the Blacktown meeting in October 2007.
In cross-examination Dr Robinson accepted that the best he could say as at 9 February 2019 was that it was “very doubtful” whether Mr Magann had mental capacity in 2007. His evidence was that it was “probable”, although he “couldn’t be certain” that in 2007 Mr Magann did not have the capacity to understand what he was doing.
In his report dated 9 February 2019, Dr Robertson was “doubtful” that Mr Magann had the requisite mental capacity to enter the deed in 2007. His opinion was that his condition had “improved tremendously” since then. In 2018 he was “astonished” with his improvement and, his opinion was that Mr Magann was now competent to give instructions. Mr Gyles SC suggested to Dr Robertson that if Mr Magann did not have the mental capacity to make decisions for himself in 2003 he would have said so in this report. Dr Robinson replied “Yes, I would have said something to that effect, yes”. Mr Gyles pointed to the inconsistencies between the 2018 and 2003 reports in so far as they did and did not, respectively, make reference to so-called “wet brain” or other cerebral impairment”. The cross-examination continued as follows:

“Q. --you say [at p 3 of the 2003 report], ‘There were no features of psychotic illness. He did not appear to be at all intoxicated. And there was nothing to suggest clouding of consciousness or organic cerebral impairment.’
A. Yes.
Q. So you’re saying that whether or not you believed his history in relation to alcohol abuse, doing the best you could in August 2003, you did not see any cerebral impairment.
A. That’s a mistake on my part. I think he certainly had organic cerebral impairment.”

On 1 December 2018, Dr Robertson gave a positive opinion that Mr Magann had, at that time, the capacity to instruct his solicitor. He accepted that Mr Magann was prone to anger and rage. He also accepted that rage and anger do not necessarily prove incompetence. Whatever brain damage resulting from alcoholic misuse Mr Magann may have suffered, in Dr Roberston’s opinion, it did not cause him to say that he was incompetent to give instructions as of 2018. In cross-examination his evidence was as follows:

“Q. What I'm trying to really drive at here, Professor, is what is the difference between his position in 2007 when you say he was incompetent and the position in 2018 when you say he was competent?
A. He'd improved.
Q. What does that mean? What had improved?
A. Tremendously. Can I finish?
Q. Yes, sorry.
A. He had improved tremendously from when I saw him in 2003. Given how he was in 2003, I thought that in 2007 he would still be affected badly by alcohol. I was astonished at the improvement I saw in him in 2018.”

Dr Samuell

Mr Doron Samuell is a clinical and forensic psychiatrist who was engaged by the Church to provide an opinion about whether Mr Magann had capacity to sign the Deed. He evaluated the evidence contained within Dr Robertson’s report, as well the affidavits of Mr Wall and Mr Davis.
Mr Samuell noted that, in his opinion, Dr Robertson obtained very little history concerning Mr Magann’s functioning during 2007. He wrote that “in the mental state examination presented by Dr Robertson, there was a mixture of observations and discursive reflections that were irrelevant to a mental state examination”. In his opinion, Dr Robertson did not provide evidence or argument to support the assertion that Mr Magann did not have capacity when signing the Deed. He stated that Dr Robertson did not provide evidence for his conclusion that Mr Magann was brain damaged and was deficient in not conducting a clinical assessment. His conclusion was that “Dr Robertson’s report is seriously flawed and cannot be relied on to assert incapacity”.

Dr Zolfaghari

On 10 July 2006, Dr Fazeela Zolfaghari, clinical psychologist, wrote to the Director of Victims Services at the NSW Attorney General’s Office. Mr Magann was referred to Dr Zolfaghari for an authorised report “in regard to an act of violence for the purposes of Victim’s Compensation assessment by the Victims Services.” She commented that, even though Mr Magann attended the scheduled appointment on 7 October 2005 that “it was not possible to conduct an adequate assessment” due to the fact that he was “very belligerent, uncooperative and angry”. She noted that he “showed little capacity to listen to another’s view point and appeared quite entitled”. Mr Magann apparently angrily told the doctor that she “had little understanding of how difficult this whole ‘thing’ was for him and how his health (mental) had become worse since all this came to the fore.”
In view of this, Dr Zolfaghari was unable to conduct a thorough assessment. However, based on her interactions with him as well four other reports, she was able to form the opinion that Mr Magann’s symptoms were clinically significant and in a severe range. She concluded that Mr Magann had developed Chronic Posttraumatic Stress Disorder as well as many of the features for an Axis II disorder of the type of Borderline Personality Disorder. On the whole, she rated his symptoms at a very severe level of distress and that the alleged act of violence and subsequent symptoms had adversely and significantly impacted on his functioning.

Dr Boettcher

On 17 October 2002, Dr Brian Boettcher, Consultant Psychiatrist in General and Forensic Psychiatry, prepared a report for the Church’s solicitors.
Mr Magann’s evidence at the hearing was that he did not know Dr Boettcher: “I don't even remember going and speaking to him,” he said. He rejected Dr Boettcher’s statement that his ex-wife helped him with his alcohol problem.
In the report, Dr Boettcher’s diagnosis was that Mr Magann has Post Traumatic Stress Disorder, as he “just fulfilled” several of Diagnostic Criteria for the Disorder. These criteria were:

The traumatic event is persistently re-experienced in one (or more) ways:

Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions.

Recurrent distressing dreams about the event.

Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated).

Intense psychological distress at exposure to internal or resemble an aspect of the traumatic event.

Physiological reactivity to internal or external cues that symbolise or resemble an aspect of the traumatic event.

Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma):

Efforts to avoid thoughts, feelings, or conversations related to the trauma.

Efforts to avoid activities, places, or people that arouse recollections of the trauma.

Restricted range of affect (e.g. unable to have loving feelings) .

Duration of the disturbance (symptoms in Criteria B, C and D) is more than 1 month.

The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Dr Boettcher also noted that many of Mr Magann’s features are those of an Anti-Social Personality Disorder which start in the early teens. He stated the distinction between these diagnostic categories could only be clarified with more evidence from Mr Magann’s school reports and interviews with relatives.

The onus is on Mr Magann to establish that at the time he attended the Blacktown meeting and signed the Deed he was suffering from such a degree of mental disability that he was incapable of understanding the settlement and the contract.
The high point of the expert evidence to suggest that Mr Magann had insufficient soundness of mind at the relevant time came from Dr Robertson who saw Mr Magann in 2003, four years prior to his entering into the Deed. I have summarised his evidence above at [79]-[80]. Dr Robertson described Mr Magann is drinking excessively in 2003 and possibly having “wet brain”. There are a number of difficulties with this evidence.
First, Dr Robertson saw Mr Magann four years earlier than 16 October 2007 and then not again until 2018. He considered Mr Magann to have the relevant capacity in both of those time periods. Dr Robertson relied upon his observations in 2003 to establish that Mr Magann did not have relevant mental capacity on 16 October 2007. Nor is his opinion stated in clear terms; rather, he simply states: “I doubt very much whether in October 2007 he had the mental capacity…”
Second, Dr Robertson’s opinion as to Mr Magann’s capacity in 2007 was based on a number of factual assumptions that were challenged by the Church and which I have not found to be established.
Third, Dr Robertson’s report was prepared in 2003 for the purposes of the District Court litigation. As was pointed out by senior counsel for the Church, that context would make it more likely that a plaintiff would exaggerate symptoms and effects rather than downplay them. Significantly, the evidence of both Dr Robertson and Dr Samuell was that if a psychiatrist saw a patient for medico-legal purposes in 2003 and believed that he or she lacked capacity, in the ordinary course of practice such a finding would be included in the report.
Fourth, there is some doubt as to whether “wet brain” is a diagnosable condition. Dr Samuell’s evidence was that there was an insufficient factual basis for any diagnosis of “wet brain” and it is not a psychiatric term that is currently used.
Fifth, it is of particular significance that Dr Robertson expressly stated in his 2003 report that there was nothing to suggest clouded consciousness or organic impairment at that time. When cross-examined about this, Dr Robertson stated that must have been a mistake in his 2003 report. But when Dr Robertson was asked in cross-examination to identify where in the 2003 report he had identified any evidence of incapacity he was unable to do so; although he pointed out that in the 2003 report he had noted that Mr Magann’s business was going downhill at that time.
I have had regard to this medical evidence in the context of other evidence about Mr Magann at the relevant time.
I am not satisfied on the medical evidence that Mr Magann lacked the relevant mental capacity as at 16 October 2007.
There is other evidence to support the conclusion that Mr Magann had mental capacity at the relevant time. It was common ground that he was literate. He wrote a number of letters to the Bishop of Parramatta seeking compensation in relation to the alleged sexual abuse. Those letters show that he has no difficulty with writing and expressing himself. Although his letter to Mr Salmon in early 2014 contained many typographical errors, this may well have been the result of his distress at that time, which is evidenced in the letter.
It must be accepted that Mr Magann’s PTSD means that he presents as an angry man who can barely conceal his rage. This was a common thread in all of the medical reports before me. In Ms Bailey’s detailed report she describes Mr Magann “a very angry, anxious and distressed man”. However she did not record anything in her report which would allow a conclusion that Mr McGann did not have relevant capacity at the time she spoke with him.
Mr Magann had worked as a manager at Woolworths for 10 years and prior to 2007 had been a self-employed truck driver. At that time he was married and lived with his wife and children. The fact that Mr Magann’s business failed was relied upon by Dr Robertson to suggest this was due to his incapacity at the time. But given the evidence about his PTSD symptoms at that time, it is conceivable that his business may have failed because of these symptoms rather than any medical condition which meant he lacked the relevant capacity.
Not only did Mr Magann have contact with Mr Weller in or around 2003-2007, he also had contact with Anthony Porterhouse of counsel and David Russell QC. There was evidence that since 2007 he has also been involved in other legal disputes including tax disputes and family law disputes. A tutor or guardian has never been appointed nor has any application for one ever been made. It can be inferred that each of his lawyers must have believed him to have had the capacity to provide instructions in such matters before and after 2007. In addition, Mr Weller witnessed the Deed and did not consider him to be incapacitated at that time.
On the available evidence I am unable to find that Mr Magann has discharged the onus of establishing that he was incapacitated at the time of negotiating the settlement and entry into the Deed.

Questions 3 and 4: The Contracts Review Act/Unconscionability

In Spina v Permanent Custodians Ltd [2009] NSWCA 206; (2009) 14 BPR 26;923, Tobias, Campbell and Young JJA held at [74] that, where the Contracts Review Act and unconscionability are both pleaded, it is appropriate to deal with the Contracts Review Act claim first. As Young JA observed:

“Not only is the jurisdiction probably wider under that Act than when dealing with equitable principles of unconscionability, but where, as has happened time and time again through history, statute has been enacted to cover the same ground as an equitable principle, the equitable principle is usually put into abeyance. After all, equity only operates where the common law is inadequate.”

Accordingly, I shall deal with Mr Magann’s reliance upon the Contracts Review Act first.
The Church initially relied on the statutory limitation pursuant to s 16 of the Contracts Review Act which provides that:

An application for relief under this Act in relation to a contract may be made only during any of the following periods:
(a) the period of 2 years after the date on which the contract was made,
(b) the period of 3 months before or 2 years after the time for the exercise or performance of any power or obligation under, or the occurrence of any activity contemplated by, the contract, and
(c) the period of the pendency of maintainable proceedings arising out of or in relation to the contract, being proceedings (including cross-claims, whether in the nature of set-off, cross-action or otherwise) that are pending against the party seeking relief under this Act.
(Emphasis added.)

Counsel for Mr Magann submitted, with reference to the Court of Appeal’s decision in Baltic Shipping Co v Merchant (1994) 36 NSWLR 361, that Mr Magann’s claim was not statute-barred. It was ultimately conceded in oral argument that the decision in Baltic is binding in this case and that time started to run from the date that the Deed was pleaded as a defence to the 2017 proceedings.
Mr Magann seeks relief under s 7(1) of the Contracts Review Act which relevantly provides:

(1) Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following:
(a)  it may decide to refuse to enforce any or all of the provisions of the contract,
(b)  it may make an order declaring the contract void, in whole or in part,
(c)  it may make an order varying, in whole or in part, any provision of the contract,
(d)  …

Section 4(1) of the Contracts Review Act defines “unjust” to include “unconscionable, harsh or oppressive”.
Section 9 outlines a number of matters to which the Court is to have regard to, including the public interest:

9 Matters to be considered by Court
(1) In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of:
(a) compliance with any or all of the provisions of the contract, or
(b) non-compliance with, or contravention of, any or all of the provisions of the contract.

(2) Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following:
(a) whether or not there was any material inequality in bargaining power between the parties to the contract,
(b) whether or not prior to or at the time the contract was made its provisions were the subject of negotiation,
(c) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract,
(d) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract,
(e) whether or not:
(i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or
(ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented,

because of his or her age or the state of his or her physical or mental capacity,
(f) the relative economic circumstances, educational background and literacy of:
(i) the parties to the contract (other than a corporation), and
(ii) any person who represented any of the parties to the contract,

(g) where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed,
(h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act,
(i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect,
(j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act:
(i) by any other party to the contract,
(ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or
(iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract,

(k) the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party, and
(l) the commercial or other setting, purpose and effect of the contract.

(3) For the purposes of subsection (2), a person shall be deemed to have represented a party to a contract if the person represented the party, or assisted the party to a significant degree, in negotiations prior to or at the time the contract was made.
(4) In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made.
(5) In determining whether it is just to grant relief in respect of a contract or a provision of a contract that is found to be unjust, the Court may have regard to the conduct of the parties to the proceedings in relation to the performance of the contract since it was made.

In Provident Capital Ltd v Papa [2013] NSWCA 36, Allsop P recognised that the broad evaluation of unjustness under the Contracts Review Act involves the normative evaluation of the totality of relevant circumstances. His Honour observed at [7] that:

“Central to the normative evaluation is the recognition that there is a need for the protection of some people in some circumstances, who are not able fully to protect their own interests against factors that may cause injustice. That vulnerability may come from one or more of many circumstances, such as lack of education or of intelligence, from gullibility, from the predation of fraud and greed, and also sometimes from loyalty and love. The characterisation of a contract as unjust and the sheeting home to the other contracting party of the consequences of its unjustness may be a difficult evaluative exercise. At its heart, however, is the recognition of the inadequacy of one party to protect her or his interests in the circumstances.”

More recently, in Lauvan Pty Ltd v Bega [2018] NSWSC 154; (2018) 330 FLR 1, Gleeson JA conveniently set out the relevant principles relating to the operation of the Contracts Review Act at [283]-[286] (an appeal against his Honour’s judgment was dismissed by the Court of Appeal without referring to these principles: Bega v Lauvan Pty Ltd [2019] NSWCA 36). His Honour noted that the purpose of the Contracts Review Act is “to protect persons who, for various reasons, are not able to look after their own interests, and who are preyed upon by dishonesty, trickery and other forms of predation”. His Honour went on to consider the relevant authorities and observed at [284] that a contract will not be unjust merely because:

“..it was not in someone’s interest to enter into it; it was inopportune or produced a loss; because the party seeking relief was foolish, gullible or greedy; or because the contract was burdensome, a hard bargain, strongly in the interests of the party against whom relief is sought, or in some sense unreasonable”.

As for the significance of the absence of independent legal advice, Gleeson JA observed at [285] that this will depend on the circumstances:

“[i]t will be of particular significance if the party seeking to enforce the contract is actually aware that the advice has not been given or has not been understood”.

McHugh JA had earlier held in West v AGC (Advances) Ltd (1986) 5 NSWLR 610, that if a defendant is not engaged in conduct which deprives a claimant of any real or informed choice and the terms of the contract are reasonable, a contract will not be considered unjust simply because, inter alia, he had no legal advice.
Section 9 requires me to have regard to the public interest. There is, of course, an interest in holding parties to their agreements, in particular in relation to the finality of litigation: Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 at [269].
When considering the mandatory considerations in s 9(2) in the present case, it is pertinent to first note the relevant bargaining positions of the parties. Mr Magann gave up a statute barred claim and received $95,000 for doing so. When the question of “inequality in bargaining power between the parties to the Deed” is considered, it must be accepted that it was the Church who had the bargaining power.
Mr Magann relied upon four matters to prove that the contract was unjust under the Contracts Review Act: the Church’s superior bargaining power, undue influence and pressure, vulnerability and the disadvantage of the plaintiff’s educational background and literacy.
I have already summarised the evidence and my factual findings in relation to the conduct of the meeting. It should also be noted that the meeting went for three or four hours, tea, drinks and food were provided and there was an apology from the Bishop for his non-attendance. An independent facilitator was appointed, Mr Magann was allowed to bring a support person and the understanding of Mr Davies at least was that Mr Magann had seen his lawyer, Mr Weller, before the meeting. Mr Weller’s evidence was that he knew the meeting was about to take place. He did not suggest that he was prohibited from attending. Mr Wall had spoken to Mr Magann a couple of times before the meeting to get the process started.
As for the terms of the Deed, there were no conditions which were unduly difficult to comply with: Mr Magann had to agree not to make any further claims against the Church in circumstances where he had no legal right to do so at that time. Although Mr Wall and Mr Davis had considered a payment of $70,000 before the meeting, Mr Magann was able to negotiate that up to $95,000. In the context that he had previously told the Bishop that he wanted $10,000 for every year he was abused, this amount is close to what he had initially sought. As for the language of the contract, it is to be accepted that Mr Weller did not explain it fully to Mr Magann, but what he did do is explain to Mr Magann that the Church had no legal obligation to pay him anything at all.
As for the relative economic circumstances, educational background and literacy of the respective parties to the Deed, it is to be accepted that there was some disparity but that does not of itself indicate unjustness.
No doubt Mr Magann considers it to be unfair that had he not taken the payment from the Church he could have had his claim determined on its merits in this Court. The difficulty is that s 9(4) of the Contracts Review Act prevents the court from having regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made. This would include the subsequent removal of the limitation period. Accordingly, any perceived injustice arising from this change in the law cannot be taken into account when considering the fairness of the Deed.
Having considered the relevant principles and applied them to the facts as I have found them, I am unable to identify any undue influence or any unfair pressure or tactics to have been exerted on Mr Magann. For these reasons Mr Magann has not established a basis for relief under the Contracts Review Act.

Unconscionable Conduct

Mr Magann’s claim under the Contracts Review Act having failed, I turn finally to consider whether there is any scope for him to have the Deed set aside on the basis of unconscionable conduct on the part of the Church. There is a significant overlap as between this claim and that under the Act. In Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 the High Court confirmed the relevant principles of unconscionable conduct in equity to be as follows at [38] (footnotes omitted):

“A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage "which seriously affects the ability of the innocent party to make a judgment as to [the innocent party's] own best interests”. The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring "victimisation", "unconscientious conduct", or "exploitation". Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.”

Applying these principles to the facts as I have found them, Mr Magann has not established that he suffered from any special disadvantage let alone that the Church took advantage of it. No predatory state of mind on the part of the Church has been established.

Conclusion

At the time Mr Magann signed the Deed with his solicitor on 16 October 2007 he accepted payment from the Church in exchange for relinquishing a statute-barred claim. Neither he nor his solicitor, understandably, contemplated that in nine years time the obstacle to him asserting his legal rights in Court would be removed by Parliament. By releasing and discharging the possibility of renewing his claim for damages for sexual abuse prior to the passage of the Amendment Act, Mr Magann is now unable to have his “day in court”, something he clearly yearns for.

The difficulty for Mr Magann is that his Deed was agreed to on the express basis that it would prevail in respect of all future claims arising from his allegation of child sexual abuse, including those that are now unlimited by time. Those were the terms on which the bargain was made, those were the terms that existed at the time and those are the terms to which regard must now be had.

Appropriate Orders

I propose to make the declaration sought by the Church. The effect of this is that the deed is valid and the Church’s liability is extinguished.
In the defendant’s written submissions an order for summary dismissal is sought in the event that the separate question is determined in its favour. Mr Boyd made no submissions on this issue. Although no notice of motion is before me seeking such an order I do not consider it to be consistent with the “just, cheap and quick” disposal of the matter to require that formality. Despite the fact that there was no express opposition to summary dismissal being entered, I propose to afford the plaintiff 14 days to approach the court should he wish to be heard as to why summary dismissal should not be entered.

ORDERS

Accordingly, I make the following declaration:

Declare that Deed of Release dated 16 October 2007 between the plaintiff and the defendant is valid and extinguishes the defendant’s liability in relation to any cause of action arising from the matters contained in it including these proceedings.

And I make the following orders:

Direct the plaintiff to file and serve within 14 days any submissions as to why it would be inappropriate for the Court to dismiss his claim.
Direct that the defendant file and serve any submissions in reply, if required, within 7 days after receipt of any submissions from the plaintiff.
Reserve judgment as to whether the court should dismiss the proceedings and direct that such determination take place on the papers.
The plaintiff is to pay the defendant’s costs.

Decision last updated: 29 October 2019

Medium Neutral Citation:	Magann v Trustees of the Roman Catholic Church of the Diocese of Parramatta [2019] NSWSC 1453
Hearing dates:	18, 19, 20, 21 March 2019 (last evidence filed 16 May 2019)
Decision date:	28 October 2019
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	(1) Declare that the Deed of Release dated 16 October 2007 between the plaintiff and the defendant is valid and extinguishes the defendant’s liability in relation to any cause of action arising from the matters contained in it including these proceedings. (2) Direct the plaintiff to file and serve within 14 days any submissions as to why it would be inappropriate for the Court to dismiss his claim. (3) Direct that the defendant file and serve any submissions in reply, if required, within 7 days after receipt of any submissions from the plaintiff. (4) Reserve judgment as to whether the court should dismiss the proceedings and direct that such determination take place on the papers. (5) The plaintiff is to pay the defendant’s costs.
Catchwords:	CONTRACTS –– motion for determination of separate question – r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) claim in respect of alleged childhood sexual abuse – where limitations period defeated claim without determination of its merits – where claimant signed deed of release releasing defendant from any liability in respect of his claims – where claimant received payment – where relevant limitations periods subsequently repealed – whether claim for damages maintainable following repeal of limitations periods notwithstanding deed releasing all liability – Contracts Review Act – unconscionability
Legislation Cited:	Contracts Review Act 1980 (NSW), s 4(1), s 7(1), s 9, s 16 Interpretation Act 1987 (NSW), s 30C Limitation Act 1969 (NSW), s 6A, s 58(2), s 58(2), s 60C(2), s 60G(2), Sch 3, Pt 3, cl 10, Sch 5 Limitation Amendment (Child Abuse) Act 2016 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Baltic Shipping Co v Merchant (1994) 36 NSWLR 361; (1994) Aust Contract R 90-045 Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251; [2001] UKHL 8 Bega v Lauvan Pty Ltd [2019] NSWCA 36 Borchert v Terry [2009] WASC 322 Brambles Holdings Ltd v Bathurst City Council (2001) NSWCA 61 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Campbell v Campbell [2015] NSWSC 784 Codelfa Constructions Proprietary Limited v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24 Doggett v Commonwealth Bank of Australia (2015) 47 VR 302; [2015] VSCA 351 Eijkman v Magann; McGloin v Magann; Trustees of the Roman Catholic Church of the Diocese of Parramatta v Magann [2005] NSWCA 358 Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23 Griffin Energy Group Pty Ltd (subject to a Deed of Company Arrangement) v Laughland [2016] NSWSC 1057 Hanna v Raoul [2018] NSWCA 201 Lauvan Pty Ltd v Bega [2018] NSWSC 154 Louth v Diprose (1992) 174 CLR 621; [1992] HCA 6 Magann v The Trustees of the Roman Catholic Church of the Diocese of Parramatta [2018] NSWSC 1551 Provident Capital Ltd v Papa [2013] NSWCA 36 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Spina v Permanent Custodians Ltd (2009) 14 BPR 26;923; [2009] NSWCA 206 The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Proprietary Limited and Ors (No 2) NSWSC 322 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Wilton v Farnsworth (1948) 76 CLR 646; [1948] HCA 20
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015)
Category:	Principal judgment
Parties:	The Trustees of the Roman Catholic Church of the Dioceses of Parramatta (Applicant/Defendant) Darren Peter Magann (Respondent/Plaintiff)
Representation:	Counsel: L Gyles SC with A Campbell (Applicant/Defendant) T Boyd (Respondent/Plaintiff) Solicitors: Makinson d’Apice (Applicant/Defendant) Herbert Weller (Respondent/Plaintiff)
File Number(s):	2017/254444
Publication restriction:	Nil