Mooney v Trustees of the Christian Brothers

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2024 01373

BETWEEN:

DARREN WILLIAM MOONEY	Plaintiff
and
TRUSTEES OF THE CHRISTIAN BROTHERS	Defendant

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July and 7 August 2025
DATE OF JUDGMENT:	23 September 2025
CASE MAY BE CITED AS:	Mooney v Trustees of the Christian Brothers
MEDIUM NEUTRAL CITATION:	[2025] VSC 602

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LIMITATION OF ACTIONS – Historical sexual abuse – Settlement agreement – Application to set aside settlement agreement pursuant to s 27QD of Limitation of Actions Act 1958 (Vic) – Whether ‘just and reasonable’ to set aside agreement, in whole or part – Where Ellis defence materially influenced plaintiff’s decision to enter into settlement agreement – Where plaintiff voluntarily gave up claim for economic loss – Just and reasonable to set aside only part of the deed - Limitation of Actions Act 1958 (Vic), ss 27QA(2), 27QD, 27QE – Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Foley SC Ms R McEwen	Rightside Legal
For the Defendant	Mr S Hay KC Mr C Morshead	Carroll & O’Dea Lawyers

Contents

A.. Introduction

B.. Historical legal barriers and legislative reform

C.. Legislative provisions

D.. Principles relevant to setting aside a settlement agreement

E... Factual background

F... Relevant evidence

F.1          The annotated letter
F.2          The absence of a witness from Waller Legal
F.3          Plaintiff’s reliability and credibility

G.. Plaintiff’s submissions

H.. Defendant’s submissions

I.... Analysis

J.... Conclusion

HER HONOUR:

A Introduction

The plaintiff, aged 58 years, alleges that in approximately 1975, he was sexually and physically abused by Br Gerald Fitzgerald, a Christian Brother, whilst he was a student at St Alipius primary school. Further, the plaintiff alleges that in approximately 1980, he was physically abused by Br Karl Bucher, another Christian Brother, whilst he was a student at St Paul’s technical college. Both of these Ballarat based schools were operated by the St Patrick’s Province of the Congregation of the Christian Brothers.
In July 2016, the plaintiff accepted an offer of settlement from the defendant, the Trustees of the Christian Brothers, for the sum of $150,000 inclusive of costs and disbursements (the settlement sum) and signed a settlement agreement (the deed). This deed released the defendant[1] from any further claims by the plaintiff, and contained an acknowledgement that the agreed sum did not include any allowance for economic loss, as the plaintiff had not sustained any economic loss.
[1]Brother Peter Bernard Clinch, in his capacity as Provincial Leader of the Oceania Province of the Congregation of Christian Brothers, was also a party to this deed.
On 26 March 2024, the plaintiff commenced proceedings in this Court, claiming damages for the psychiatric injuries he claims to have suffered as a result of the alleged abuse by Fitzgerald and Bucher (the alleged abuse). In its defence dated 23 August 2024, the defendant pleaded, amongst other things, that the plaintiff’s claim is barred by virtue of the deed.[2]
[2]In the alternative, the defendant pleads that if the plaintiff establishes an entitlement to damages in this proceeding, any such entitlement should take account of the settlement sum paid under the deed.
This is an application by the plaintiff, made pursuant to s 27QD of the Limitation of Actions Act1958 (Vic) (the LAA) to have the deed set aside, so as to enable him to recover further compensation from the defendant.[3] The plaintiff must satisfy me that it is just and reasonable to do so.[4]
[3]By way of summons dated 18 February 2025.
[4]Limitation of Actions Act1958 (Vic) s 27QE (‘the LAA’).
The defendant urged me to dismiss the application. In the alternative, the defendant submitted that even if I was satisfied it was just and reasonable to set aside the deed, in so far as it released the defendant from a further claim for general damages and medical expenses, I should refuse to set aside the part of the deed that released the defendant from any claim for economic loss, as the plaintiff had voluntarily agreed to forego such a claim.
For the reasons that follow, I am satisfied that only part of the deed be set aside, such that the plaintiff is not barred from claiming further damages in this proceeding, save for in relation to his economic loss.

B Historical legal barriers and legislative reform

As I noted in my recent judgment of Warrick (a pseudonym) v Trustees of the Christian Brothers,[5] there were two critical legal barriers which historical child sexual or physical abuse plaintiffs commonly faced when seeking to claim compensation for their abuse. In Warrick, I explained these as follows:
First, and relevantly at the time of the plaintiff’s abuse, under the LAA, a claim for damages by a person abused as a child, was required to be issued within six years of their 18^th birthday. Failure to issue within this time period would ordinarily result in a defendant pleading a limitation defence, which, absent an extension of time being granted, prevented the recovery of damages.
Second, there was often difficulty identifying the appropriate legal entity to sue in institutional abuse proceedings. On 24 May 2007, the New South Wales Court of Appeal delivered its judgment in Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis. In that case, the plaintiff alleged that, between the ages of 13 to 18 years, he was sexually abused by an assistant priest of the Roman Catholic Church. The plaintiff sued the Archbishop of Sydney, and the Trustees of the Church. The Court held that at common law, an unincorporated association cannot sue or be sued in its own name, because, among other reasons, it does not exist as a juridical entity. This gave rise to what was commonly referred to thereafter as the Ellis defence.[6]
[5][2025] VSC 520 (‘Warrick’).
[6]Ibid 2 [6]–[7] (citations omitted).
Legislative reform subsequently removed these legal barriers. As further noted in Warrick, this was done by the following legislation:
On 1 July 2015, the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) commenced operation. Relevant to this application, it introduced ss 27O and 27P into the LAA. These sections removed the limitation period for actions founded on the death or personal injury of a person who suffered sexual or physical abuse, or psychological abuse arising out of sexual or physical abuse, whilst a child, regardless of when the abuse occurred.
On 1 July 2018, the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (the Legal Identity Act) commenced operation. The stated purpose of this Act was ‘to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities’. The Legal Identity Act abolished the Ellis defence by closing the legal loophole which prevented child abuse plaintiffs from suing such unincorporated organisations who lacked the requisite legal identity to be sued.[7]
[7]Ibid 2 [8]–[9] (citations omitted).
I pause here to note that at the time the plaintiff signed the deed, the limitation defence was no longer a barrier to his claim.
Further legislative reform involved granting the Court power to set aside a previous judgment or settlement if it is just and reasonable to do so. Initially this was limited to claims previously barred or settled prior to 1 July 2015,[8] however a further amendment extended this power to claims settled prior to 1 July 2018.[9]
[8]Children Legislation Amendment Act 2019 (Vic), s 31 inserted s 27OA (Definitions for this Division) and s 32 inserted ss 27QA to 27QF into Division 5 of Part IIA of the LAA.
[9] Justice Legislation Amendment (Drug Court and Other Matters) Act 2020 (Vic), s 44 amended the definition of ‘previously settled cause of action’ under s 27OA of the LAA, by amending the reference of ‘2015’ to ‘2018’.
This further legislative amendment provides the basis for the plaintiff’s application to set aside the deed.

C Legislative provisions

The sections of the LAA relevant to the plaintiff’s application are as follows:
Section 27QA
(1) ….
(2)An action may be brought on a previously settled cause of action.
(3) ….
Section 27QD
(1) This section applies to an action referred to in section 27QA(2).
(2)In a proceeding to which this section applies, application may be made to the court for the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action to be set aside.
(3)A court other than the Supreme Court may not set aside a judgment or an order of another court.
Section 27QE
(1)On an application under section 27QD or otherwise in a proceeding on an action referred to in section 27QA(2), the court, if satisfied that it is just and reasonable to do so—
(a)may make an order setting aside the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action, whether wholly or in part; and
(b)may make any other order that it considers appropriate in the circumstances.
(2)In hearing and determining any action to which this Division applies on a previously settled cause of action, the court, if satisfied that it is just and reasonable to do so—
(a)when awarding damages in relation to the action, may take into account any consideration (whether monetary or non-monetary) paid, payable or given or to be given under—
(i)a settlement agreement set aside under this section; or
(ii)any other agreement related to the settlement that has been set aside under this section; and
(b)when awarding costs in relation to the action, may take into account any amounts paid or payable as costs under—
(i)a settlement agreement set aside under this section; or
(ii)any other agreement related to the settlement that has been set aside under this section.

D Principles relevant to setting aside a settlement agreement

The party seeking to set aside a settlement agreement under s 27QE of the LAA, bears the burden of demonstrating it is just and reasonable to do so. Compelling reasons are not required.[10]
[10]WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639 (‘WCB (No 2)’), [145] (approved by the plurality of the High Court in DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806, 810 [14]) (‘DZY’).
Once again in Warrick, I outlined the principles relevant to my determination of an application made under s 27QE, with particular reference to the recent High Court decision in DZY v Trustees of the Christian Brothers.[11] I noted the following:
[11]DZY (n 10).
[I]n DZY v Trustees of the Christian Brothers, the High Court dismissed an appeal pertaining to the construction of s 27QE of the LAA. The appellant, DZY, had entered into a settlement deed with the respondent in 2012. The effect of this 2012 deed was that DZY released the respondent from liability relating to claims that DZY was sexually assaulted in the 1960s, whilst attending a school operated by the Congregation of Christian Brothers. A further deed was entered into in 2015. Under both deeds, DZY agreed not to bring any further claim for damages arising from the alleged sexual assaults. Both deeds further recorded that DZY did not allege any economic loss as a result of the alleged assaults. At the time DZY entered into the 2012 deed, both legal barriers applied. At the time DZY entered into the 2015 deed, the limitation defence had been abolished by statute, but the Ellis defence was still available to the respondent.
The respondent did not oppose DZY’s application to set aside the deeds in respect of his claim for general damages, but opposed the application insofar as it would have allowed DZY to claim economic loss. At first instance, the primary judge concluded it was just and reasonable to set aside both deeds in their entirety. On appeal, the Court of Appeal considered it was just and reasonable to set aside only the general damages components of the deeds, maintaining the respondent’s protection from a further economic loss claim. The appellant appealed to the High Court.
The plurality of the Court (Gageler CJ, Gordon, Edelman and Gleeson JJ) stated that:
There is nothing in the text of s 27QE which limits the exercise of the court’s power to circumstances where the claimant's decision to enter the settlement agreement had been materially impacted by either the limitation defence or the Ellis defence. The text of s 27QE simply does not prescribe the matters to which the court should have regard in determining whether to set aside a settlement agreement.
What the text of s 27QE does require, in order for the court to set aside a settlement agreement, is that the court be satisfied that it is ‘just and reasonable’ to do so. ‘[J]ust and reasonable’ are words of wide import. There is no basis in the purpose or context of s 27QE to read the words “just and reasonable” as subject to some limitation not found in the text of the provision.
A useful description of the court's task in considering whether to set aside a settlement agreement under s 27QE was provided by Fraser JA in TRG v Board of Trustees of the Brisbane Grammar School. Although that decision concerned a different provision – namely, s 48(5A) of the Limitation of Actions Act 1974 (Qld) – that provision is materially identical to s 27QE. As Fraser JA said:
[t]he use of the expression ‘just and reasonable’ to identify the only ground for such an order, the fact that the power is conferred upon courts, and the absence of any express identification of the material factors or the relative weight or significance to be attributed to any of them, compel the conclusion that the legislative purpose encompasses account being taken of the interests of both parties to the settlement in deciding whether it is just and reasonable to set aside the settlement agreement, the relative significance or weight to be given to the material factors in that exercise depending upon a judicial assessment of the particular circumstances of each case.
That construction of s 27QE is reinforced by the relevant extrinsic materials. It may be accepted that s 27QE seeks to address the existence of potentially unfair settlement agreements between victims of child abuse and defendant organisations as a result of historic, and unjust, legal barriers. However, the extrinsic materials reinforce that the breadth of the words ‘just and reasonable’, in s 27QE allow a court to set aside settlements in response to a variety of injustices. So, for example, in relation to s 27QE, the Explanatory Memorandum to the Children Legislation Amendment Bill 2019 (Vic) said:
It is in the court’s discretion to determine what is just and reasonable according to the circumstances of each case, allowing the court to apply broad principles and take account of any relevant factors. This may include, for example, the relative strengths of the parties' bargaining positions, the conduct of the parties and the amount of the settlement.
Similarly, in the Second Reading Speech, the Minister said:
In determining what is just and reasonable a court can take into account a number of considerations, informed by the Royal Commission. … Where survivors faced significant disadvantage in pursuing compensation due to legal barriers such as the statute of limitations, the Ellis defence, or the deficiency of the law regarding the duty of care of organisations, settlements entered into should be set aside in the interests of justice, to allow victims to obtain compensation which is deemed adequate by today’s standards.
...
It is not necessary that the existence of the limitation period be the predominant reason as to why the agreement was entered into. There may be a number of reasons that a plaintiff entered into such an agreement, including but not limited to unequal bargaining power, barriers to identifying a proper defendant, feelings of guilt and shame compounded by the burden of giving evidence and being subject to cross‑examination, or the behaviour of the relevant institution.
Consistent with that construction of s 27QE, as Lyons JA observed, the exercise of the court's power is not fettered such that no order is to be made unless there is a finding that either the limitation defence or the Ellis defence had a “material impact” on the claimant's decision to settle their claim or was a leading factor in the decision. Given the conclusion reached by Lyons JA, and his Honour's understanding of the reasons of Beach and Macaulay JJA from which Beach and Macaulay JJA did not expressly demur, the Trustees' submission that Beach and Macaulay JJA did not treat the limitation defence or the Ellis defence as necessary prerequisites for the exercise of the power under s 27QE but, rather, that their Honours simply provided guidance as to considerations that were central, but not necessary, to the exercise of that power, should not be accepted. Beach and Macaulay JJA repeatedly made statements to the effect that: "[i]f no finding was made that either legal barrier had such an impact, it is doubtful that any cogent ground would exist to conclude it was just and reasonable to set the settlement aside". It is apparent that their Honours incorrectly considered the legal barriers were, if not prerequisites to the exercise of the power under s 27QE, then quasi‑prerequisites, such that it is doubtful that s 27QE could apply absent either the limitation defence or the Ellis defence.
That is not to suggest that the previous legal barriers are irrelevant in determining whether it is just and reasonable to set aside a settlement agreement in whole or in part under s 27QE. One or both of the legal barriers will ordinarily play some part in determining whether it is just and reasonable to set aside a settlement agreement under s 27QE.
The High Court agreed with the Court of Appeal that the evidence was insufficient to allow the Court to be satisfied it was just and reasonable to set aside the deeds insofar as they released the respondent from an economic loss claim. The evidence suggested DZY abandoned his economic loss claim due to concerns about a potential liability to Centrelink, not due to the limitation defence or the Ellis defence. Also relevant to the Court’s decision was that DZY was legally represented, and was not rushed into signing either of the deeds.
Previously, in Roman Catholic Trusts Corporation for the Diocese of Sale v WCB, the Court of Appeal observed the need to consider both parties’ interests in assessing whether it was just and reasonable to set aside the deed.
As part of the Court’s refusal to grant leave to appeal in WCB, it noted the appellant, the Roman Catholic Trusts Corporation, had not identified any material prejudice by reason of which it would not be just and reasonable for the Court to set aside the settlement. Specifically, it was noted that the trial judge had not erred by holding the appellant had not been relevantly prejudiced by the lapse of time or the consequential loss of evidentiary sources.[12]
[12]Warrick (n 5) 4–7 [13]–[18], quoting DZY (n 11) 810 [14], 812–3 [24]–[30]; citing Roman Catholic Trusts Corporation for the Diocese of Sale vWCB (2020) 62 VR 234 (‘WCB’) 271 [124], 279 [153]; WCB (No 2) (n 10) 639 [145] (citations omitted).

E Factual background

The following documents were tendered by the parties:
(a)affidavit of the plaintiff, dated 18 February 2025;
(b)affidavits of the plaintiff’s solicitor, Jane McCullough, dated 18 February 2025, 4 April 2025 and 6 May 2025;
(c)affidavit of the defendant’s solicitor, Greg McAllister, dated 26 May 2025; and
(d)affidavit of the defendant’s solicitor, Howard Harrison, dated 28 May 2025.
The plaintiff, Mr McAllister and Mr Harrison were called to give evidence, and each was cross-examined.
From the oral evidence and tendered documents, I note the following background relevant to this application.
The plaintiff was born in June 1967.
In 1972, the plaintiff commenced at St Alipius, where he attended from prep through to Year 6. The plaintiff then attended St Paul’s from Year 7 until Year 9, at which time the plaintiff was expelled.
In 1975, when the plaintiff was in Grade 3, Fitzgerald was the deputy headmaster at St Alipius, and also the plaintiff’s classroom teacher. The plaintiff alleges that Fitzgerald sexually and physically abused him. The plaintiff claims that Fitzgerald asked the plaintiff to sit on his knee, cuddled the plaintiff, touched the plaintiff’s genitals through his clothing, licked the plaintiff behind the ear, and kissed the plaintiff on his cheek and mouth.
In the defendant’s defence in this proceeding, the defendant admits that the plaintiff was abused by Fitzgerald, but does not admit the particulars of the abuse outlined in the plaintiff’s amended statement of claim. The defendant also admits that it breached the duty it owed to the plaintiff regarding the abuse by Fitzgerald.
The plaintiff further claims that in 1980, while a student at St Paul’s, he was subjected to physical abuse by Bucher. The plaintiff alleges that Bucher bullied and humiliated him by singling him out in the classroom, including by strapping the plaintiff’s buttocks and hands.
In the defendant’s defence, it admitted the allegations pertaining to Bucher, but pleaded that such allegations consisted of ‘lawful correction’ of the plaintiff, and thus did not constitute ‘physical abuse’ for the purposes of the LAA.[13]
[13]LAA (n 4) s 27O(1)(b)(i).
After leaving school, the plaintiff worked in a variety of jobs. From 1990 until 1993, the plaintiff studied for a teaching degree, and graduated when he was 26 years of age. The plaintiff said at that time, due to the rationalisation of teaching jobs in Victoria, it was difficult to get work as a teacher, and so instead, the plaintiff worked for a company that ran the ‘Work for the Dole’ program. However in 1997, the plaintiff obtained work as a teacher, and in 2008, he became an acting principal. The plaintiff subsequently obtained a permanent position as a principal, and he continued as principal until 2017 after which time he returned to teaching duties at the same school.
In March 2015, the plaintiff contacted solicitors, Waller Legal, and sought advice in relation to his possible entitlements to compensation. In this initial contact, the plaintiff only disclosed the physical abuse by Fitzgerald and Bucher. On 7 April 2015, an email sent to the plaintiff from solicitor Ms Laura Kane of Waller Legal, informed the plaintiff that his legal enquiry with Waller Legal would be ‘on hold’ until he had made contact with the police.
On 8 April 2015, the plaintiff provided a statement to the Victoria Police’s SANO Task Force,[14] which detailed the physical abuse by Fitzgerald. This statement referred to an incident when Fitzgerald applied methylated spirits to the plaintiff’s injured knee and then subsequently kissed the plaintiff’s cheek; an incident when Fitzgerald kissed the plaintiff on the lips; an incident where Fitzgerald watched the plaintiff and others swim in their underpants; and allegations of physical abuse.
[14]A unit of Victoria Police which investigated historical child sexual abuse allegations.
The plaintiff said that he was advised that as a result of both Fitzgerald’s death, and the absence of a report of sexual abuse, the police would take no action.
The plaintiff accepted that his police statement contained no allegations of sexual abuse. In cross-examination, the plaintiff said that he was too ashamed to talk about the sexual abuse at that time. The plaintiff explained that he was only able to do so after he subsequently received psychological treatment.
There were two hand written notes from the Waller Legal file, relevant to the plaintiff’s initial complaint being limited to physical abuse. One note, dated 24 April 2015, stated ‘No SA/ then says SA’. The other note, dated 24 July 2015, stated ‘client may be making story up ...’.
In cross-examination, the plaintiff said he could not recall being advised that his delay in reporting the sexual abuse, would present a risk to his claim against the Christian Brothers.
In approximately June 2015, the plaintiff consulted solicitors Ryan Carlisle Thomas (RCT) and sought advice about his possible entitlements to compensation.
In a letter dated 22 June 2015, from RCT to the plaintiff, RCT advised there were ‘real legal and practical difficulties’ if the plaintiff was to proceed in issuing a court proceeding. The plaintiff was advised that ‘it is very difficult to sue the Catholic Church and its religious orders in cases of historical abuse’. The letter explained this meant that, ‘in cases of historical abuse, the Catholic Church is in effect immune from suit.’
Having acknowledged those difficulties, RCT advised the plaintiff that:
…the Catholic Church’s Truth Justice and Healing Council has recently announced that the Melbourne Archdiocese, the Christian Brothers, the Marist Brothers and the De La Salle brothers will now help plaintiffs to identify the proper defendant to sue in cases of child sexual abuse should they wish to take their claims to court. If honoured, this would make it possible to sue those particular orders in cases of child sexual abuse.
RCT proposed investigating the plaintiff’s claim so as to advise him further as to his prospects of success, and a possible range of damages. RCT then recommended that:
Given the cost of the litigation, and the delays and the risks involved, we strongly recommend that the settlement process is explored before any decisions are made about litigating.
In a subsequent letter dated 22 April 2016, RCT advised the plaintiff that legislation had recently been passed which abolished limitation periods for those bringing legal proceedings in cases of child abuse.
The plaintiff said he could not presently recall what RCT advised him as to the possible quantum of his claim. However in cross-examination, the plaintiff accepted he subsequently told Waller Legal that he had been advised by RCT his claim was worth between $65,000 to $85,000.
In early May 2016, the plaintiff sought further advice from Waller Legal. A conference was arranged for the plaintiff to be interviewed by Dr Vivian Waller on 23 May 2016, for the purpose of Dr Waller taking a statement from the plaintiff regarding the alleged abuse. A typed attendance note from the plaintiff’s Waller Legal file, dated 23 May 2016, was tendered. This note contained a detailed account of the plaintiff’s abuse, and its impact upon him. The note referred to the plaintiff having been subjected to sexual and physical abuse from Fitzgerald, and also physical abuse from Bucher (and other lay teachers at St Paul’s). At the conclusion of the note, the following advice was recorded:
Discussed and Isntructed (sic)
ADR
No formal loss of earnings claim, loss of opportunity.
General damages
Medical report CASA Ballarat
Triggs assessment today.
Set up settlement conference with CBs.
Ullikely (sic) to be any CCI coverage.
Needs letter of advice and fee agreement
In a letter to the plaintiff dated 14 June 2016, Waller Legal advised that it had acted in a number of prior claims involving Fitzgerald, and had obtained strong evidence that the Christian Brothers were ‘on notice’ that there was a risk of Fitzgerald offending against children from 1950 onwards.
The letter went on to advise the plaintiff there were ‘legal technicalities that make successfully suing Catholic defendants in court difficult’, with the main difficulty identified as the Ellis defence. This was explained to the plaintiff as meaning:
…that Australian law does not recognise the Catholic Church as a legal entity that can be sued in its own right for child sexual abuse. As such, a case against the Church (or a sect within it like the Christian Brothers) is vulnerable to being dismissed by a court on the basis of a legal technical defence.
The plaintiff was advised the barrier created by a limitation defence had been removed, but that other legal technical difficulties, like the Ellis defence, remained.
The letter concluded with a recommendation that Waller Legal engage in out of court settlement discussions with the Christian Brothers to obtain compensation for the plaintiff. It was said that ‘increased public awareness of sexual abuse issues within the church, has made the Christian Brothers generally amenable to engaging in out of court settlement discussions’ and Waller Legal had ‘reached successful outcomes in numerous cases’ through this process.
The plaintiff said he understood from the advice he received from both RCT and Waller Legal that:
... effectively I could not sue the Christian Brothers and would have to try to negotiate an out of court settlement with them. I followed the legal advice I was given. I do not recall ever being advised by Waller Legal that the position in relation to the Ellis [defence] had changed.
The plaintiff said he understood the Ellis defence related to ‘the way the Church structured itself so that it can’t be sued,’ and that because of this, it would be ‘difficult’ and ‘almost impossible’ to take the Church and/or the Christian Brothers to court.
The plaintiff recalled a telephone conversation with Dr Waller, when she called him whilst he was watching his son’s football match. The plaintiff recalled Dr Waller telling him she had successful outcomes in claims involving allegations against Fitzgerald. The plaintiff also recalled Dr Waller explaining to him that the Ellis defence was ‘an inhibitor to … taking people to court.’
On 23 June 2016, Waller Legal wrote to the defendant’s solicitors Carroll & O’Dea, and amongst other things, requested that Carroll & O’Dea ‘identify the appropriately indemnified entity/entities or person/s to be named as defendants in this matter on behalf of the Christian Brothers.’
At about this time, Waller Legal arranged for the plaintiff to be examined by medico-legal psychiatrist, Dr Wendy Triggs. In a report dated 24 June 2016, Dr Triggs outlined the plaintiff’s description as to how the abuse had impacted him, including learning difficulties, rebelliousness, alcohol consumption, and substance abuse. Dr Triggs noted this had resulted in erratic employment for the plaintiff. Dr Triggs also recorded the plaintiff’s history of having had episodes of depression and suicidality throughout his life, and that in the previous year, the plaintiff had driven his car at a high speed with a plan to crash into a tree. Dr Triggs further noted that, upon the recommendation of his GP, the plaintiff took seven weeks off work in 2015 due to stress and his inability to cope.
Dr Triggs diagnosed the plaintiff with dysthymia, recurrent episodes of major depression, alcohol abuse disorder, and post-traumatic stress disorder. Dr Triggs opined the sexual and physical abuse was the ‘major’ cause of the plaintiff’s psychiatric condition.
Dr Triggs considered the plaintiff would likely benefit from a referral to a psychiatrist, antidepressant medication, alcohol education, and possibly a detoxification and rehabilitation program. Dr Triggs opined that the plaintiff may require psychiatric hospitalisation for his suicidality or alcohol detoxification, which would likely cost between $50,000 to $100,000 for a comprehensive rehabilitation. The report recommended fortnightly psychiatric consultations for a period of five years, at an estimated cost of $15,000.
In addition, Waller Legal obtained a medical report from Barbara Kent, a qualified social worker, employed by the Ballarat Centre Against Sexual Assault (CASA). Ms Kent had provided support to the plaintiff since June 2015. In the report dated 12 July 2016, Ms Kent provided an overview of the plaintiff’s history, including his description of the abuse, the impacts it had on his education, career, and mental health. The report outlined specific trauma effects which the plaintiff described as a result of the alleged abuse which included anxiety, depression, difficulties in relationships, sense of self, and confidence in himself and his abilities. Ms Kent opined that the plaintiff would likely seek therapeutic intervention throughout his life to deal with the effects of the abuse.
Waller Legal served the reports of Dr Triggs and Ms Kent on the defendant’s solicitors, Carrol & O’Dea, prior to the informal settlement conference held between the parties.
On 13 July 2016, Waller Legal wrote a letter to Carrol & O’Dea regarding the plaintiff’s claim (the 13 July letter).   This letter detailed the plaintiff’s allegations as to the sexual and physical abuse by Fitzgerald, and the physical abuse by Bucher.[15]   The letter then set out the following:
[15]In addition, allegations were made in relation to physical and psychological abuse imposed by other teachers at St Paul’s. As such allegations are not part of this proceeding, the details of those allegations are not relevant to this application.
Special Damages
I am instructed by the Plaintiff that:
·     He is a 49 year old married man who is employed as a school principal. He has worked as a teacher since 1997;
·     Prior to becoming a teacher, he had an unstable work history which involved more than 27 different jobs in a variety of roles such as cutting metal in a scrap yard, working for a theatre, landscaping, gardening, as a builder's labourer and as a kitchen hand at the Epworth hospital;
·     There is no formal claim for loss of earnings;
·     There is a claim for loss of opportunity;
·     His education was disrupted by the physical and sexual abuse by the Christian Brothers, and his entry into his profession was delayed by some years as a result of the abuse;
·     He has had great difficulty dealing with persons in positions of authority. This has delayed his education and resulted in rebellious behaviour and criminal charges for assault in 1984;
…
Thereafter, (and still under the heading ’special damages’), the 13 July letter detailed the plaintiff’s instructions relevant to his claim for general damages, together with the quantum of his claim for future medical expenses, based upon the cost estimates contained in the report of Dr Triggs.
The plaintiff was cross-examined as to the contents of the 13 July letter. The plaintiff accepted it was probable that Waller Legal sent this letter, based upon his instructions. However, the plaintiff said he could not recall having a discussion with Waller Legal about the distinction between a claim for loss of earnings and a claim for loss of opportunity. The plaintiff also said he could not recall providing, nor being asked to provide, any financial records to Waller Legal.
The records of Waller Legal contain an undated document entitled ‘Checklist: Pre-Settlement Conference’ (the pre-settlement checklist). This document recorded that loss of earnings had been discussed with the plaintiff, and he had instructed Waller Legal not to include these in his claim.
On 15 July 2016, an internal Waller Legal memorandum addressed to Dr Waller was completed by an unknown author (the internal memorandum). This memorandum contained an overview of the plaintiff’s file, presumably to assist Dr Waller, who was to represent the plaintiff at the settlement conference. The memorandum detailed the plaintiff’s allegations of abuse, his life history (including his early childhood, impact of the abuse, his education, and employment history) and medical overview. In relation to liability, it was noted ‘the records and evidence show that the Christian Brothers were on notice that Fitzgerald was engaging in inappropriate activities with boys from the early 1950s.’
The internal memorandum detailed instructions from the plaintiff as to his damages. The following was noted:
Pain and suffering
[The plaintiff] has instructed that he would like to claim general damages for pain and suffering.
Loss of opportunity
[The plaintiff] instructs that he would like to claim special damages for loss of opportunity. He does not wish to pursue a formal loss of earnings component.
Past medical expenses
There are no past out of pocket medical expenses.
Future medical expenses
[The plaintiff] has instructed this office to claim future medical expenses.
Dr Triggs opines that [the plaintiff] would benefit from fortnightly psychiatric consultations for 5 years, at a cost of approximately $15,000.00
He may also require hospitalisation, which would cost $50,000.00 - $100,000.00.
On 19 July 2016, the settlement conference was held between Dr Waller, and a solicitor from Carrol & O’Dea. The plaintiff attended this conference with his wife, but they did not sit in on the open session between the parties’ legal representatives.
In a letter to Waller Legal on the same day as the settlement conference, Carrol & O’Dea provided Waller Legal with a complaints history regarding Fitzgerald, and advised that it held no records or history of complaints against Bucher. Also in this letter, Carrol & O’Dea advised that Br Patrick Naughtin was the relevant provincial for 1975 to 1976 and it was ‘to be confirmed’ who the principal of St Alipius was for that same period. The letter concluded by stating that the defendant agreed to indemnify the principal and provincial during the relevant time (and/or the executors of their estates).
Tendered in this proceeding was a letter dated 30 May 2016, from Carrol & O’Dea to Waller Legal, in relation to another of Waller Legal’s clients, who was also making a claim in respect of abuse at St Alipius in 1975 and 1976. This letter informed Waller Legal that Br Naughtin was deceased. The letter also stated Br Egan had been the principal of St Alipius in 1975, but that he was deceased. The letter also identified the principal of St Alipius in 1976 as Br J C Higgins.
The plaintiff could not recall being informed that Waller Legal had sought information to assist in the identification of a proper defendant, nor could he recall being told of the information provided to his solicitors by Carrol & O’Dea, as detailed in the letters of 30 May and 19 July 2016.
The plaintiff sought to tender a copy of the 13 July letter which had handwritten annotations on it (the annotated letter).[16] The following is an image of the relevant parts of the annotated letter:
[16]The defendant objected to the tender of the annotated letter. For the reasons given in paragraphs [81]–[84] below, I ruled the annotated letter was admissible in this application.

The Waller Legal file note of the settlement conference,[17] recorded the following offers being made:
[17]This file note is undated, but by inference, both parties accepted it was a note which recorded the exchange of offers at the settlement conference.
Plaintiff’s first offer: $443,000, plus costs and disbursements (plus costs) of $22,236.
Defendant’s counter-offer: $100,000 inclusive of costs and disbursements (inclusive).
Plaintiff’s counter- offer: $400,000 plus costs.
Defendant’s counter-offer: $115,000 inclusive.
Plaintiff’s counter-offer: $380,000 plus costs.
Defendant’s counter-offer: $125,000 inclusive.
Plaintiff’s counter-offer: $350,000 plus costs.
Defendant’s counter-offer: $140,000 inclusive.
The final offer: $150,000 inclusive.[18]
[18]In Mr McAllister’s affidavit, he deposed to the plaintiff making the final offer of $150,000 inclusive. However, this is based upon his reading of the Waller Legal file note. This would appear to be inconsistent with the plaintiff’s evidence that he was told by Dr Waller the defendant could take the offer off the table the following day. The plaintiff was not challenged in respect of this.

The plaintiff said Dr Waller advised him that the defendant could take the final offer off the table the following day. The plaintiff also said Dr Waller advised him that if he tried to sue the Christian Brothers in court, there was a real risk he would get nothing.
The plaintiff also said:
… although I did not think that $150,000 in any way adequately compensated me for a lifetime of anguish and an impaired work capacity, I felt like I had no choice but to accept the [defendant’s] offer.
On the same day as the settlement conference, the plaintiff signed the deed.[19]
[19]The parties agreed the deed met the requirements of s 27QA(2) of the LAA.
Relevant to this application, I note that the deed contained the following terms:
2.2 [The plaintiff] acknowledges that the [settlement] sum is paid:
….
2.2.2 in full extinguishment of his rights against [the defendant]; and…
2.2.4 in full and final settlement of all loss and damage sustained by [the plaintiff] as a result of the claims and further, that the [settlement] sum does not include any allowance for economic loss past or future as [the plaintiff] has not sustained any economic loss as a result of the claims. (clause 2.2.4)
….
3.1 [The plaintiff] for himself, his executors, administrators, dependants, heirs and assigns hereby releases and forever discharges the Body Corporate and the Institute from any claim, proceeding, action, cause of action or charge that he may have or may have had against [the defendant] with respect to the claims.
3.2 [The plaintiff] acknowledges having been informed of his right, and having been allowed reasonable time, to seek independent legal advice prior to his signing of [the deed].
4.1 [The plaintiff] acknowledges and agrees that:
4.1.1 he will make no further claim for damages, expenses, treatment costs or compensation;
…..
4.1.3 [the deed] may be pleaded by [the defendant] as a bar to any claim, action, cause of action, charge or any other proceeding commenced against them or any other person;
arising out of or in connection with the acts, facts or circumstances constituted by the claims.
Annexed to the deed was a solicitor’s certificate, dated 19 July 2016, and signed by Dr Waller. Dr Waller certified that she had ‘explained the purport and effect’ of the deed to the plaintiff, who ‘appeared’ to Dr Waller to understand it. Dr Waller further certified that the plaintiff had ‘voluntarily executed’ the deed in her presence.
The plaintiff was cross-examined as to his recollection of the settlement conference. The plaintiff said that he was ‘under the impression’ that when he attended the settlement conference, he was making a claim for both economic loss, and pain and suffering damages.
The plaintiff said that he could not recall Dr Waller explaining the deed to him.
The plaintiff was cross-examined as to his understanding of the terms of the deed, including clause 2.2.4. The plaintiff said:
I signed the document, but I'm not necessarily sure that I read that particular paragraph [clause 2.2.4] because it was a long day. The settlement conference was a huge day, and it's something - a legal document, I suppose, that um Waller Legal had put together and [$]150,000 was nowhere near enough, but at the end of the day, I think I just signed it…but it was nowhere near what we should have taken away from the conference.
On 7 September 2016, Waller Legal sent a letter to the plaintiff, which confirmed the settlement sum, and advised his legal costs and disbursements had been calculated at $22,236. Waller Legal confirmed that it had transferred the plaintiff the balance of $127,764.[20] The plaintiff was also provided with a written apology from the Christian Brothers, and a copy of the deed.
[20]A Medicare Notice of Charge from the Department of Human Services dated 25 August 2016, stated there was a nil payback, as there were no past benefits paid.
On 11 October 2016, Waller Legal wrote to the plaintiff and, at his request, provided him with details of how to arrange a pastoral session with the defendant.
Also tendered in the application were the following contemporaneous documents:
(a)A media release of 22 May 2015, issued by the Truth Justice Healing and Council,[21] which stated that Senior Church leaders would no longer rely on the Ellis defence as a ‘legal tactic’ in child abuse claims. I note this media release was referred to in the RCT letter of advice to the plaintiff, dated 22 June 2015.
(b)Christian Brothers’ Guiding Principles for Responding to Civil Claims Involving Allegations of Child Sexual Abuse dated 11 February 2016. The purpose of the Guiding Principles was to ensure the Christian Brothers responded to claims in a manner ‘that minimises potential further trauma to victims/survivors’. Amongst the numerous principles outlined in this document, it stated the Christian Brothers would ‘only rely upon a limitation period in exceptional circumstances.’ The document made no reference to the Ellis defence.
(c)A media release of 30 March 2016, issued by the Christian Brothers, which stated that the Christian Brothers would ‘continue to nominate a proper legal entity, backed by assets, to enable victims to commence civil proceedings’.
(d)Submissions made by Waller Legal, on 11 July 2016, to the Royal Commission into Institutional Responses to Child Sexual Abuse, which stated that obtaining information from the Christian Brothers was initially difficult, but that in recent months, there had been ‘significant improvement’ in the provision of ‘information allowing individual defendants to be identified.’ The submissions further stated that, if ‘specifically requested’, the Christian Brothers ‘may provide the name of relevant individual defendants’- normally, the provincial, and/or principal at the relevant time.
[21]The joint body established by the Australian Catholic Bishops Conference and Catholic Religious Australia. The Truth, Justice and Healing Council was created in response to the establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse, and served to represent the Church in a coordinated manner before the Commission.
In cross-examination, the plaintiff was taken to the documents identified in the previous paragraph. The plaintiff said he was not previously aware of any of these documents, nor the contents of them.
Mr Harrison gave evidence. At the time the deed was entered into, Mr Harrison was a partner at Carroll & O’Dea, and acted on behalf of the defendant, including in relation to the plaintiff’s claim. Mr Harrison said that from at least late 2014 or early 2015, he had ‘standing instructions’ from the defendant ‘not to raise or rely on the Ellis [defence].’ Further, on 11 November 2015, Mr Harrison wrote to Waller Legal to confirm this and indicated that the defendant would provide (upon request, on a case by case basis) details of individuals or entities who had ‘operational responsibility’ for a particular institution where alleged abuse occurred.
Mr Harrison accepted that prior to the plaintiff accepting the offer of settlement, the plaintiff had not been given an entity to sue, but rather named individuals. Mr Harrison could not say whether he attended the settlement conference.
Mr McAllister gave evidence. Mr McAllister, is the solicitor at Carrol & O’Dea presently responsible for the defendant’s defence of the plaintiff’s proceeding. Mr McAllister said that he has worked in the area of institutional abuse litigation since 2018, and he accepted that he had significant litigation experience in this area. In cross-examination, Mr McAllister accepted the following propositions:
(a)for an individual looking to sue in an institutional abuse setting, being given the name of an individual, such as a principal or provincial, is not the same as having an organisation to sue;
(b)in order to succeed in a claim, the plaintiff would have had to show, amongst other things, that the principal or provincial, knew or should have known, of the relevant risk of abuse;
(c)if the relevant provincial or the principal was dead, that would cause a difficulty in the case, in part as that person would not be available for cross-examination; and
(d)for many claimants, prior to the Legal Identity Act, the difficulties created by the Ellis defence would not have been solved by being given a principal or provincial to sue, as opposed to an organisation.

F Relevant evidence

Before I consider the parties substantive submissions as to whether it is just and reasonable to set aside the deed (in whole or part), I will first deal with the submissions made as to particular parts of the evidence, and what, if anything, I should do with such evidence.

F.1 The annotated letter

The defendant objected to the tender of the annotated letter, on the basis of relevance, and hearsay, and in the alternative, sought its exclusion under s 135 of the Evidence Act 2008 (Vic). It was put that the date of its creation, and the author of the annotations, was unknown. Given that the annotations contradict the contents of the 13 July letter, in so far as it suggests there might have been a claim for economic loss, it is an unreliable document. It was submitted the annotations were hearsay. As the document was prepared in contemplation of legal proceedings, it could not be admitted as a business record under s 69 of the Evidence Act. Further, although this was an interlocutory hearing, the document should not be admitted under s 75 of the Evidence Act, as its source was unknown, and there was no urgency in this application.[22] Finally, it was submitted that even if I was satisfied the document was admissible, it should be excluded under s 135 of the Evidence Act, as its prejudicial effect substantially outweighed its probative value, given the contradiction between the annotations and the letter.
[22]Citing Australian Gift and Homewares Association Ltd v Melbourne Convention and Exhibition Trust & Anor (Ruling No.1) [2014] VSC 481, [73]–[80]; Liesfield v SPI Electricity [2014] VSC 348, [38]–[43].
The plaintiff submitted that in circumstances where it was part of the Waller Legal file, and referred to the cost of a medical report from CASA (with such report being dated 12 July 2016), I could be satisfied that it was written by a representative from Waller Legal, on or after that date. Further, it was put that the annotation as to the total assessment of the plaintiff’s claim (including a quantification of $208,000 for a loss of opportunity claim) was $443,000 plus costs of $22,236 and this was the exact figure which constituted the plaintiff’s opening offer at the settlement conference. It was submitted that a number of handwritten notes from the Waller Legal file had been admitted into evidence as business records, through the affidavit of Mr McAllister, where the author of the note was unknown. As a matter of consistency, all such records are highly probative of what occurred at the time of the settlement conference, and should be before the Court.
I am satisfied that the annotated letter should be admitted into evidence. The annotations are relevant to whether or not the plaintiff made a claim for economic loss on the day of the settlement conference. The correlation between the figures in the annotated letter, and the plaintiff’s opening offer, are such that I can be confident that the annotations were made at either the time of the settlement conference, or shortly before it – noting the letter was dated 13 July, and the conference was held on 19 July 2016.
As the annotated letter was obtained from the Waller Legal file, I can infer the annotations were made by a solicitor from that firm, most probably Dr Waller - given the correlation between the figures and the opening offer. The annotations are the types of notes which a solicitor will ordinarily prepare, in anticipation of a settlement conference, based upon that solicitor’s assessment of the file.
When looking at the annotations as a whole, I infer the reference to 30 (x 8), was a reference to the gross annual salary of a teacher being $30,000; the reference to 26 (x 8) was a reference to the net annual salary of a teacher being $26,000; and the reference to x 8, being the eight year period between 1989 to 1996. The claim for loss of opportunity, was based upon the net loss of $26,000 for each of the eight years, and totalled $208,000. Such annotations are not being admitted in this application to prove the asserted facts, but rather for the purpose of proving that a claim for economic loss was made on the day of the settlement conference.
Given there are a number of other handwritten documents from the Waller Legal file which are before me, it would be artificial to exclude the annotated letter from those other business records, as it gives context to the plaintiff’s opening offer. As a contemporaneous document, it is highly probative of the basis of the calculations giving rise to what the plaintiff’s solicitors claimed at the settlement conference, and this outweighs any unfair prejudice to the defendant, by its admission.

F.2 The absence of a witness from Waller Legal

The defendant submitted that an adverse inference should be drawn from the plaintiff’s failure to adduce evidence from Dr Waller and Ms Kane from Waller Legal. It was put that either solicitor could have given direct evidence about key issues in this application, including their own personal recollections of the plaintiff and the advice given to him in regards to his prior claim, together with their awareness and experience in dealing with the Christian Brothers at that time, with a particular emphasis on the Ellis defence, and receiving information as to a proper defendant. The defendant submitted there was no satisfactory explanation as to the absence of either solicitor, and consistent with the reasoning of Forrest J in Pearce v Waller,[23] an adverse inference should be drawn from this.
[23]Pearce v Waller [2025] VSC 324, [537]–[539], [541].
The plaintiff relied upon an affidavit from Ms McCullough dated 23 July 2025, in which she deposed to contacting Dr Waller’s solicitor in early May 2025, so as to arrange for Dr Waller to give evidence in this application. Ms McCullough deposed to being advised, just days before the hearing, that for personal reasons, Dr Waller was not available to give evidence. It was put that the evidence of Ms McCullough’s attempts to call Dr Waller, provided a sufficient explanation for her absence. It was also submitted that where Dr Waller’s solicitors were responsive to Ms McCullough’s communications regarding arrangements for Dr Waller to give evidence, it was reasonable for Ms McCullough not to have considered it necessary to issue a subpoena to secure Dr Waller’s attendance.
In respect of Ms Kane, it was submitted that this solicitor’s name was only recorded once on the file, and that was in April 2015.
Where a witness, who is able to give relevant evidence about a fact in issue, is not called, and the party expected to have called that witness does not offer a sufficient explanation for the absence of the witness, an adverse inference may be drawn, against the party who failed to call that witness.[24]
[24]Jones v Dunkell (1959) 101 CLR 298, 308. See also Davies v Pyke [2004] VSCA 124, [16].
It is clear from the tendered material, Dr Waller was actively involved in advising the plaintiff as to his legal rights, and appeared for him at the settlement conference. The plaintiff properly conceded that Dr Waller could give relevant evidence in this application.
I accept the plaintiff’s solicitors were in regular communications with Dr Waller’s solicitors to arrange for Dr Waller to give oral evidence. This was an interlocutory application, and not a trial. Waller Legal was not a party to the proceeding. It was reasonable for the plaintiff’s solicitors to anticipate that Dr Waller would co-operate in attending Court, and it was not necessary to subpoena her to give evidence. Therefore, the absence of Dr Waller is sufficiently explained such that I am not persuaded that I should draw an adverse inference against the plaintiff.
Given Ms Kane had only minimal contact with the plaintiff more than a year before he signed the deed, I am not persuaded Ms Kane could be expected to give relevant evidence about a fact in issue in this application. I draw no adverse inference from her absence.

F.3 Plaintiff’s reliability and credibility

The plaintiff openly acknowledged that it was difficult for him to remember specific details as to advice given to him in the period leading up to him signing the deed. This is hardly surprising – it was almost 10 years ago, and as the plaintiff himself observed, ‘a long time has passed’.
I found the plaintiff to be a witness of truth. The plaintiff’s inability to recall specific aspects of the advice given to him did not impact upon my assessment as to his credibility. However, it did adversely impact my assessment as to his reliability as a witness. Where there is an inconsistency between the plaintiff’s memory and a contemporaneous written record, I will generally prefer the contents of the tendered document.
Notwithstanding the above, I accept there are some events and conversations, which the plaintiff has a positive and genuine recollection of. For example, the plaintiff said he recalled a lengthy telephone conversation with Dr Waller when he was at his son’s football match. The plaintiff could recall the positive and negative aspects of advice given to him at that time, as it related to his possible claim. I also accept the plaintiff’s recollection of being told by Dr Waller at the settlement conference, that the defendant could take the offer off the table the following day.

G Plaintiff’s submissions

The plaintiff submitted the Court should be satisfied that it is just and reasonable to set aside the deed on the following basis:
(a)The plaintiff had been advised by lawyers, and believed, that there were legal obstacles, including the Ellis defence, which prevented him from being able to bring a viable claim in court against the Christian Brothers. It was submitted that the plaintiff’s evidence that he accepted the offer of settlement because he believed he ‘effectively … could not sue the Christian Brothers is consistent with the contemporaneous documentary material.
(b)The deed was entered into when the Ellis defence was still available to the defendant. It was emphasised that the Guiding Principles document was silent in respect of the Ellis defence, and did not state that the Christian Brothers would not rely upon that defence.
(c)The defendant’s identification of the relevant provincial and school principal as at the time of the alleged abuse, and its statement that it would indemnify those people (and their successors) did not remedy the difficulty created by Ellis. Further, this was effectively acknowledged by Mr McAllister, given the concessions he made in his evidence.[25]
(d)At no time prior to the settlement did the defendant advise Waller Legal in writing, that in respect of the plaintiff’s claim, it would not rely on the Ellis defence.
(e)The plaintiff had a strong claim against the Christian Brothers. It was noted that in this proceeding, the defendant accepted the abuse by Fitzgerald (although not the particulars) and it also conceded it had breached its duty of care to the plaintiff in relation to the abuse by Fitzgerald.
(f)The medical report of Dr Triggs provided strong support for the impact which this abuse had upon the plaintiff.
(g)The plaintiff could not recall being advised that his delay in revealing the sexual abuse may pose a particular risk to his claim, and there was no letter of advice referring to this as a risk that the plaintiff should consider. It was submitted there was no evidence that any concern by Waller Legal, about failing to establish that the abuse occurred, was a factor relevant to the plaintiff’s decision to accept the offer of settlement.
(h)The plaintiff’s claim was settled at an undervalue. It was put that there were no evidence of any other causative factor for the plaintiff’s psychiatric condition. It was also put that the defendant did not lead any evidence to explain how the settlement figure was reached (noting that Mr Harrison could not recall whether or not he attended the settlement conference).
[25]See paragraph [77] above.

In view of the above, the plaintiff urged me to accept that the Ellis defence was material to his decision to accept the offer of settlement, and that it was just and reasonable to set aside the whole of the deed.
In relation to clause 2.2.4, it was submitted I should be satisfied that the plaintiff made a claim for loss of opportunity (as a form of economic loss). It was put that the plaintiff gave clear and consistent evidence on this, and his belief on this was supported by the contemporaneous documents, namely: the 13 July letter; the annotated letter; the internal memorandum, and the notes of the settlement conference. It was submitted I should reject the defendant’s contention that the plaintiff voluntarily decided to forgo a claim for economic loss.

H Defendant’s submissions

The defendant submitted that the evidence before the Court supported the following findings:
(a)at no stage was the Ellis defence raised or relied upon by the defendant;
(b)the Ellis defence was not a discounting factor in the quantum of the claim at the time the deed was signed;
(c)the defendant identified the relevant provincial (and Waller Legal knew the identity of the principal of St Alipius from an unrelated claim), with confirmation that it would indemnify them (and/or the executors of their estates). The provision of this information accorded with its standard practice at the time, as detailed in [73] above; and
(d)at no stage did Waller Legal raise any issue or concerns with the defendant as to a perceived risk of the Ellis defence.
In view of the above, the defendant submitted I should reject the plaintiff’s claim that the Ellis defence was material to his decision to accept the offer of settlement.
Additionally, the defendant submitted there were inconsistencies in the plaintiff’s reporting of the abuse, including the plaintiff’s initial instructions to Waller Legal and his statement to the police only referring to physical abuse, with an express denial of sexual abuse. The defendant relied upon two Waller Legal internal working documents, which referenced concern about these inconsistencies. Further, it was submitted that there was a paucity of evidence as to the plaintiff’s claim, and no contemporaneous records as to the plaintiff’s condition in the previous 20 years. It was submitted that such matters, when considered together, support a finding that quantum achieved by the plaintiff in the deed was affected by matters wholly unrelated to the Ellis defence.
Further, and or in the alternative to the above, the defendant urged me to find that the plaintiff had made a separate decision not to bring an economic loss claim. The defendant relied on the following contemporaneous records to demonstrate such assertion:
(a)Dr Waller’s file note from her conference with the plaintiff on 23 May 2016, where it was recorded that there was ‘no formal loss of earnings claim, loss of opportunity’.
(b)The pre-settlement check list recorded the plaintiff had instructed Waller Legal not to include a claim for loss of earnings.
(c)The 13 July letter informed the defendant there was ‘no formal claim for loss of earnings’ with only ‘a claim for loss of opportunity’ being made. This letter also detailed the plaintiff’s successful work history as a teacher and principal since 1997.
(d)The internal memorandum noted the plaintiff ‘does not wish to pursue a formal loss of earnings component’.
The defendant submitted there were no financial records, nor medical reports to support an economic loss claim. The defendant emphasised that Dr Triggs commented that the plaintiff had ‘admirably settl[ed] into the teaching profession’ and ‘enjoyed his career’ which ‘helps him move forward’, and Ms Kent observed that the plaintiff had ‘managed to maintain and develop his career’.
The defendant also submitted that I should disregard any evidence which may indicate that there were acts or omissions on the part of the plaintiff’s previous solicitors which affected the quantum obtained by the plaintiff under the deed. It was submitted that any inadequacy of legal representation is irrelevant to whether or not a settlement agreement should be set aside, and that if there was solicitor negligence, the plaintiff’s remedy may lie elsewhere.[26]
[26]Citing Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1. See also Pearce v Waller Legal [2025] VSC 324, [477].

Analysis

Having regard to the whole of the evidence, the parties’ submissions, and applying the principles outlined above, I have concluded it is just and reasonable for part of the deed to be set aside, such that the plaintiff is able to make a further claim for his general damages and medical expenses, but not for his economic loss.
From the defendant’s perspective, I accept that at the time the plaintiff entered into the deed, it had publicly stated its intention to co-operate with victims of historical abuse cases, and in some statements had referred to its intention not to rely on the Ellis defence. Waller Legal were aware of this co-operative approach, and (a week prior to the settlement conference) had acknowledged this in a submission to the Royal Commission. On the day of the settlement conference, Carrol & O’Dea had provided Waller Legal with some information relevant to individuals who could be named in a proceeding, and who would be indemnified.
However, against such favourable conduct which tends against the setting aside of the deed, I have had regard to the following.
Although as noted above, Carrol & O’Dea provided Waller Legal with a letter containing information relevant to who might be a proper defendant to the plaintiff’s claim, there were obvious limitations to this letter. It was only provided on the day of the settlement conference and it did not identify the principal of St Alipius,[27] nor the principal of St Paul’s.
[27]Although, noting Waller Legal had been previously given this information for another of its clients.
At no time prior to the plaintiff accepting the offer of settlement, did the defendant state in writing that it would not rely upon the Ellis defence in respect of the plaintiff’s claim. The fact that Waller Legal did not ask for this assurance on behalf of the plaintiff, is insufficient to neutralise this factor.
Mr Harrison acknowledged that identification of a person to sue is not the same as having an entity to sue. Whilst Mr Harrison was not practising in the area of institutional abuse claims at the time the deed was entered into, his frank concession on this (as an experienced practitioner acting on behalf of the defendant in such claims since 2018) is a fair assessment of the potential difficulties from suing a person, in comparison to an entity.
The Guiding Principles did not state that the defendant would not rely on the Ellis defence. Given the amount of detail otherwise contained in this document, the silence on this is consistent with the Ellis defence remaining a potential hurdle to the plaintiff’s claim.
Most significantly, I accept the plaintiff’s evidence that at the time he accepted the offer of settlement, he had an ongoing and genuine belief, based upon legal advice provided by two law firms (both experienced in institutional abuse claims), that it was very difficult to sue the Christian Brothers. The plaintiff expressly stated he understood this was due to the way in which the Church had structured itself.
Only one month prior to the settlement conference, the plaintiff had been advised in writing of these ongoing ‘legal technicalities’ including the Ellis defence.
Whilst the plaintiff had a poor memory of some aspects of the advice provided to him, he gave consistent and credible evidence as to his recollection as to why he settled his claim on the day of the settlement conference. This was in part due to his ongoing belief there were significant obstacles, including the Ellis defence, which made it very difficult to sue the Christian Brothers. I am satisfied that the Ellis defence was a material influence upon the plaintiff’s decision to accept the offer of settlement.
I also accept the plaintiff’s evidence that he can expressly recall Dr Waller advising him that the offer of settlement may not be on the table the following day. This information conveyed to the plaintiff a need to make a swift decision.
The defendant submitted the contemporaneous documents support an inference that a potential issue impacting an assessment of the plaintiff’s damages claim at the time he signed the deed, was his delay in reporting the sexual abuse. The plaintiff said that when he initially contacted Waller Legal and the police in April 2015, he was too ashamed to disclose Fitzgerald’s sexual abuse of him, and therefore, initially, the plaintiff only reported the physical abuse. The records of Waller Legal indicate there was some concern by those solicitors, as to the consequences that the plaintiff’s delay in reporting the sexual abuse may have had upon his case. Although the plaintiff said that he was not aware of this, I accept the defendant’s submission that this may have influenced Waller Legal in recommending the plaintiff accept the offer of settlement. However, as was noted by the plurality in DZY,[28] the Minister’s second reading speech acknowledged that feelings of guilt and shame amongst victims of childhood abuse may be part of the reasons for entering into a settlement agreement. Therefore, any impact this issue may have had upon Waller Legal recommending the offer of settlement to the plaintiff, is consistent with it being just and reasonable to set aside part of the deed.
[28]DZY (n 11) [28].
The advice which the plaintiff received from RCT as to the potential range of damages, was given in the absence of any medical material. It was also given at a time when the Ellis defence remained a hurdle to the plaintiff’s claim.
I reject the defendant’s contention that there was a paucity of evidence, which further impacted the settlement sum. The medical material served by Waller Legal prior to the settlement conference, was evidence of the profound and lasting impact which the abuse had upon the plaintiff’s life.
I do not accept the defendant’s submission that I should have regard to the plaintiff’s potential claim in negligence against his former solicitor. Given the matters referred to in paragraphs [107]-[110] and [116], I am not satisfied there would be a proper basis for any such claim.
Having regard to other judgments delivered prior to 2016,[29] and based on my experience in such claims as at that time, I am satisfied that the settlement sum was not a reasonable assessment of the plaintiff’s loss and damage in 2016.
[29]See SB v New South Wales(2004) 13 VR 527; GGG v YYY [2011] VSC 429; Erlich v Leifer & Anor [2015] VSC 499.
In view of the above matters, I have concluded that the deed, should be set aside, in part. It is just and reasonable to permit the plaintiff to make a further claim in respect of his general damages and medical expenses. However, for the reasons that follow, I am not persuaded that it is just and reasonable to set aside the aspect of the deed which releases the defendant from a claim for economic loss.
As at 2016, the plaintiff had been in relatively consistent employment since finishing high school. After a period of working in a multitude of unskilled jobs, the plaintiff obtained a teaching degree, and was later employed as a school principal. At the time the plaintiff accepted the offer of settlement, he had been in a long term position as school principal. Notwithstanding the plaintiff’s evidence to this Court that he believed he had suffered economic loss as his teaching career had been initially delayed and then adversely impacted because of the abuse, the Waller Legal file notes record the plaintiff’s instructions that he would not make a claim for loss of earning. There is also no evidence that the plaintiff provided Waller Legal with any financial records to support such a claim (or to enable its merit to be evaluated).
The reference to a claim for loss of opportunity in the 13 July letter is so vague as to be meaningless. It was not associated with an attempt to calculate such loss, as might have been expected (at that time) in accordance with principles outlined by the High Court in Malec v Hutton,[30] and Sellars v Adelaide Petroleum NL.[31] Further, when this letter was sent to Carrol & O’Dea, no supportive documentary evidence as to the purported loss of opportunity was provided (such as taxation records, comparable employee earnings etc).
[30](1990) 169 CLR 638.
[31](1994) 179 CLR 332.
The annotated letter, when read together with the notes of the settlement conference, satisfy me that at the settlement conference, a cursory attempt was made to quantify the plaintiff’s loss of opportunity claim. This accords with the plaintiff’s evidence that he believed he made a claim for both economic loss, and pain and suffering damages. However, I note the calculation that the plaintiff had suffered a loss of opportunity of $208,000 over eight years, did not take account of the plaintiff’s actual earnings during that period (noting the plaintiff said he worked in a variety of jobs before he commenced his teaching studies). In the absence of any documentary evidence to support a claim for loss of opportunity, this claim (made orally on the day of the settlement conference) can fairly be described as an ambit and speculative claim.
The plaintiff’s memory as to what he was advised on the day of the settlement conference is poor. The plaintiff cannot recall whether he read clause 2.2.4 prior to signing the deed.
The plaintiff is tertiary educated. Dr Waller certified that she explained the effect of the deed to the plaintiff, and he appeared to her to understand it. The wording of clause 2.2.4 is unambiguous, and written in plain English.
Considering the whole of the evidence, I am satisfied that the plaintiff did understand he was voluntarily accepting settlement monies for his general damages and medical expenses only, and that he was expressly giving up his right to claim economic loss. I am not persuaded that the plaintiff’s decision to give up that aspect of his claim was related to the Ellis defence (or any other legal barriers associated with suing the Christian Brothers). Rather, it is consistent with the speculative nature of such a claim, and the paucity of evidence to support it. Accordingly, the plaintiff has failed to satisfy me it is just and reasonable to set aside clause 2.2.4 of the deed.

J Conclusion

On the evidence before me, and for the reasons given, I am satisfied that, pursuant to s 27QE of the LAA, it is ‘just and reasonable’ to set aside part of the prior deed: that being those terms which release the defendant from further liability in respect of the plaintiff’s claim for general damages and medical expenses in respect of the abuse.
I will hear from the parties on the form of orders.

[2025] VSC 602

23 September 2025