O'Connor v Trustees of the Christian Brothers

[2025] VSC 65

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2022 01369

BETWEEN:

JOHN O’CONNOR	Plaintiff
v
TRUSTEES OF THE CHRISTIAN BROTHERS	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 24 and 29 October 2024
DATE OF RULING:	28 February 2025
CASE MAY BE CITED AS:	O’Connor v Trustees of the Christian Brothers
MEDIUM NEUTRAL CITATION:	[2025] VSC 65

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LIMITATION OF ACTIONS — Limitation of Actions Act 1958 (Vic) ss 27QD, 27QE — Institutional abuse — Historical child sexual abuse — Settlement deed — Application to set aside settlement deed – Whether just and reasonable to set aside settlement deed – Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) – Interpretation of the Ellis defence – Ellis defence and the attribution of knowledge – Whether Ellis defence or Ellis-type defence materially impacted plaintiff’s decision to enter into settlement deed — Whether other risk factors impacted plaintiff’s decision to enter into settlement deed – Not just and reasonable to set aside settlement deed – Trustees of the Christian Brothers v DZY [2024] VSCA 73 – O’Connor v Comensoli [2022] VSC 313.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett KC with Mr J Gordon	Arnold Thomas & Becker
For the Defendant	Mr S Hay KC with Mr C Morshead	Carroll & O’Dea Lawyers

TABLE OF CONTENTS

Introduction

Summary

Evidence

The prior deed

Background

The abuse allegations

Mr O’Connor’s prior claim

Witnesses

Mr O’Connor

Dr Vivian Waller

Mr O’Connor’s prior claim – the period between 2011 and May 2017

Mr O’Connor’s prior claim - the period following May 2017

Other claims

Patrick Monahan

Howard Harrison

Daniel Creasey

Joshua Dale

Legislation and applicable principles

Is there a direct relationship between the Ellis defence and the attribution of knowledge?

Is it just and reasonable to set aside the prior deed in whole or in part?

Did the legal barriers materially impact Mr O’Connor’s decision to enter into the prior deed?

Mr O’Connor’s submissions

Defendant’s submissions

Analysis

Mr O’Connor’s legal advice and representation; bargaining power

Mr O’Connor’s submissions

Defendant’s submissions

Analysis

Prospects of success and settlement amount

Mr O’Connor’s submissions

Defendant’s submissions

Analysis

Mr O’Connor’s mental health; feelings of guilt and shame

Mr O’Connor’s submissions

Defendant’s submissions

Analysis

Economic loss claim

Mr O’Connor’s submissions

Defendant’s submissions

Analysis

Conclusion

HER HONOUR:

Introduction

1. The plaintiff, John O’Connor, was sexually abused by former Christian Brother Edward Dowlan, and allegedly physically abused by other Christian Brothers and lay teachers.  The abuse occurred while Mr O’Connor was a student at St Patrick’s College in Ballarat.  In this proceeding, he claims damages from the defendant, the Trustees of the Christian Brothers.  However, Mr O’Connor had previously released the defendant from claims relevant to the abuse.  The release was recorded in a deed of release dated 11 May 2017 and executed in January 2018 (the ‘prior deed’).  The defendant says the prior deed bars Mr O’Connor from claiming damages in the current proceeding.[1]

   [1]Amended defence filed by the defendant on 2 September 2024 (‘amended defence’), [26]-[28].

2. Mr O’Connor applies to set aside the prior deed pursuant to ss 27QD and 27QE of the Limitations of Actions Act 1958 (Vic) (‘LAA’).  The defendant opposes the application.

Summary

1. The question for determination is whether it is just and reasonable to set aside the settlement deed, wholly or partly.

2. For the reasons outlined below, I find that it is not just and reasonable to set aside the prior deed.

Evidence

1. In support of his application, Mr O’Connor relies upon his affidavit affirmed on 9 August 2023 (‘plaintiff’s affidavit’) and the affidavits of his current solicitor, Angela Di Carluccio, affirmed on 27 April 2023 (‘first Di Carluccio affidavit’), 8 December 2023, 23 May 2024, 3 July 2024, and 29 July 2024.

2. Mr O’Connor called his former solicitor, Dr Vivian Waller, to give evidence.  Both Mr O’Connor and Dr Waller were cross-examined.

3. The defendant relies upon the affidavits of:

   (a)its solicitor, Joshua Mark Dale, sworn on 19 October 2023 (‘first Dale affidavit’), 14 December 2023 (‘second Dale affidavit’),[2] 18 July 2024, 29 July 2024 (‘fourth Dale affidavit’) and 22 October 2024;

   (b)a solicitor formerly acting on behalf of Catholic Church Insurance (‘CCI’), Daniel Kevin Creasey, affirmed on 24 July 2024 (‘Creasey affidavit’);

   (c)a solicitor formerly acting on behalf of CCI, Patrick John Monahan, sworn on 14 August 2024 (‘Monahan affidavit’);

   (d)its former solicitor, Howard Gerard Harrison, sworn on 21 August 2024 (‘Harrison affidavit’).

   [2]This affidavit is unsworn but dated 14 December 2023.

1. The defendant called Mr Monahan to give further viva voce evidence, and he was cross-examined.

2. Both parties made written and oral submissions.

The prior deed

1. Mr O’Connor signed the prior deed on an unknown date in January 2018.[3]  He settled his claim for $135,000, inclusive of costs and disbursements and any statutory repayments (‘settlement sum’).  The prior deed relevantly reads as follows:

   [3]Affidavit of John O’Connor affirmed on 9 August 2023 (‘plaintiff’s affidavit’), [17].

   1. Allegations

   The Claimant alleges that:

   …

   (d)As a result of the unlawful assaults, the Claimant sustained loss, damage and/or injuries and may require specialist counselling and therapy.

   (e)The Claimant alleges that all injury, loss and damage occurred whilst he was in the care of the Respondents and/or at the Institution and which was under the care, control and/or management of the Respondents.

   (f)His injuries, loss and damage were caused or contributed to by the negligence and/or breach of duty of the Respondents.

   (Claim)

   2. Settlement

   (a)In consideration of the Claimant’s promises set out in this document, the Body Corporate and the Institute agree to pay the Claimant the settlement amount of $135,000- inclusive of all costs and disbursements (agreed sum).

   (b)The Claimant acknowledges that the agreed sum is paid:

   (i)for and on behalf of the Body Corporate and the Institute;

   (ii)in full extinguishment of his rights against the Body Corporate and the Institute; and

   (iii)subject to any deduction of any amount so required pursuant to the provisions of the Health and Other Services (Compensation) Act 1995 (Cth) or any related legislation or any social services (Centrelink) legislation of the Commonwealth of Australia.

   …

   5. Release

   (a)For the consideration set out in clause 2(a) and subject to the payment in accordance with clause 2(d), the Claimant for himself, his executors, administrators, dependents, heirs and assigns hereby releases and forever discharges the Body Corporate and the Institute and the Christian Brothers from any claim, proceeding, action, cause of action or charge that he may have or may have had against the Body Corporate and the Institute with respect to the Claim and in relation to:

   (i)all facts and circumstances relating to the Claimant’s placement at the Institution, including without limitation facts and circumstances as alleged:

   A.in documents provided to the solicitor’s (sic) of the Body Corporate and the Institute; and

   B.in expert reports provided to the solicitor’s (sic) of the Body Corporate, and the Institute;

   (ii)and any other facts and circumstances that relate directly or indirectly to the Claimant’s placement at the Institution and the Claim, and

   (iii)the subject matter of the negotiations relating to the settlement evidenced by this document.

   (b)The Claimant acknowledges having been informed of his right, and having been allowed reasonable time, to seek independent legal advice prior to his signing of this Deed of Release.

   …

   7. No Liability and Bar to Further Claims

   The Claimant acknowledges and agrees that:

   (a)he will make no further claim for injury, loss, damages, expenses, treatment, costs, therapy or compensation;

   (b)nothing in this document constitutes an admission of liability by the Body Corporate and/or the Institute in respect of the Claim;

   (c)this document may be pleaded by the Body Corporate and/or the Institute 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 Claim.

   …

   [Signature of John Stephen O’Connor] (undated).

   [Signatures of Br Peter Richardson and Carmela Leonard as Attorneys for the Body Corporate of the Trustees of the Christian Brothers (ABN 64 066 939 786)] (undated).

   [Signature of Br Peter Richardson as Attorney for Peter Bernard Clinch on behalf of the Christian Brothers and in his capacity as Province Leader] (dated 15 January 2018).[4]

   [4]Exhibit ‘ADC-1’ to the affidavit of Angela Di Carluccio affirmed on 27 April 2023 (‘first Di Carluccio affidavit’), 66–74.

Background

1. Mr O’Connor was born in 1961 and is currently 63 years of age.

2. Mr O’Connor is the eldest of five children, raised in a Catholic family in Ballarat.[5]  Before attending St Patrick’s College, Mr O’Connor described being sexually abused by a family member and by ‘Wally’, an employee of that family member.[6]  He otherwise described his childhood as happy, although his father was absent and his mother used excessive corporal punishment.[7]

   [5]Ibid, 100.

   [6]Ibid, 142

   [7]Ibid, 148.

3. Mr O’Connor attended St Patrick’s College as a day student between 1973 and 1978; he was enrolled in Forms 1 to 6 (now known as Years 7 to 12) of secondary school.  I will refer to this as ‘the relevant period’.  Mr O’Connor reports struggling academically from Form 4 (Year 10) and says he did not pass Form 6 (Year 12).[8]

   [8]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 100.

4. Dowlan was appointed to ‘the Ballarat community’ between 1973 and 1974.  During this period, he held numerous roles at St Patrick’s College, including as teacher of Religious Studies, Maths, English, and French, and as a football and cricket coach.[9]

   [9]Amended defence, [7].

5. While Mr O’Connor was a student at St Patrick’s College, the following Christian Brothers and lay teachers were also present:

   (a)Brother Bernard Alberic Ring (‘Ring’) was present between 1973 and 1976, and taught Year 7 music in 1973;

   (b)Brother Joseph Raymond O’Keane (‘O’Keane’) was present between 1974 and an unknown year,[10] and taught Year 7 Latin in 1973;

   (c)Anthony Benson (‘Benson’) was present between 1973 and 1978 having been employed as a lay teacher, and taught Year 7 history in 1973;

   (d)Peter Farley (‘Farley’) was present between 1973 and 1978 having been employed as a lay teacher, and taught Year 8 Latin in 1974; and

   (e)Brother Paul Nangle (‘Nangle’) was present between January 1973 and July 1978, having been appointed as the Principal.[11]

   (collectively, the ‘other alleged abusers’).

   [10]This year being unknown due to, I assume, a typographical error in the amended defence at [6A(a)(iii)].

   [11]Amended defence, [6A], [7A].

The abuse allegations

1. Mr O’Connor alleges the following.

2. In 1973, after lunch, Dowlan instructed Mr O’Connor to change his tracksuit pants in the sports room at St Patrick’s College.  Dowlan watched Mr O’Connor change.  Dowlan touched Mr O’Connor’s buttocks and penis and rubbed Mr O’Connor’s penis over his tracksuit pants[12] (the ‘Dowlan abuse’).

   [12]Amended statement of claim filed by the plaintiff on 30 January 2024 (‘ASOC’), [10].

3. In 1973:

   (a)Nangle strapped Mr O’Connor on his hands six times; and

   (b)Benson hit Mr O’Connor in the head with a cricket bat.

4. Between 1973 and 1978, Mr O’Connor was regularly ‘hit or bashed’ by Christian Brothers and witnessed Christian Brothers and lay teachers physically assault other students in his class, including Benson hitting boys in the head with a cricket bat, O’Keane throwing a student out of a classroom and Farley hitting a student in the head.[13]

   [13]Ibid, [9A].

5. Mr O’Connor made a statement to Victoria Police on 7 September 2010 regarding the Dowlan abuse.[14]  Dowlan subsequently pleaded guilty to 34 sexual offences committed against 20 boys, including Mr O’Connor, and was convicted and sentenced.[15]  The Director of Public Prosecutions successfully appealed this sentence.  Dowlan was re-sentenced on 18 September 2015.[16]

   [14]Exhibit ‘E’ to the affidavit of Joshua Mark Dale sworn on 19 October 2023 (‘first Dale affidavit’), 21-26.

   [15]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 18-28.

   [16]Ibid, 29-40.

6. By his amended statement of claim, Mr O’Connor says the defendant is ‘liable for any liability attaching to its leadership’.  Leadership is defined for the period before 1973 as consisting of a Provincial Leader and Provincial Council. 

7. The defendant says that St Patrick’s College was operated and controlled by the St Patrick’s Province of the Congregation of the Christian Brothers, via the Provincial Leader at the relevant time, Brother Patrick Naughtin (‘Naughtin’), and the Provincial Council.  The defendant further says that Naughtin delegated day-to-day control and management of St Patrick’s College to the Principal, Nangle.

8. Mr O’Connor says that the defendant knew or ought to have known by 1973 that Dowlan posed a risk to children.  He further says that the defendant, through its leadership and the Brothers appointed to run St Patrick’s College, including the Principal, owed him a duty of care and breached this duty of care. 

9. Under cover of objection, the defendant admits that by 1973 it ought to have known of Dowlan’s propensity to engage in sexual conduct with children.  It follows that the defendant admits it owed a duty of care to Mr O’Connor and breached this duty of care with respect to the Dowlan abuse.  Subject to proof of the abuse, the defendant also admits it breached its duty of care in respect of the other alleged abusers.

Mr O’Connor’s prior claim

1. In 2011, Mr O’Connor approached law firm Waller Legal.[17] 

   [17]Plaintiff’s affidavit, [11].

2. Dr Vivian Waller of Waller Legal wrote to Mr O’Connor on 19 January 2011 (’Waller Legal 19 January 2011 letter’).[18]  There is a date discrepancy.  This letter refers to a telephone conversation that Dr Waller had with Mr O’Connor on a date after the letter, namely 19 June 2012.  Neither Mr O’Connor nor Dr Waller could positively resolve the disparity in dates; however, both accept that this letter was sent to Mr O’Connor.

   [18]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 12-13.

3. The Waller Legal 19 January 2011 letter confirmed Mr O’Connor’s instructions to ‘investigate Supreme Court proceedings’ against ‘the Christian Brothers and any other person as may be appropriate, such as individual Christian Brothers in charge of the order.’  The letter stated:

   … Various difficulties associated with your case have been discussed with you. In particular, these difficulties include the expiration of the limitations of actions period and difficulties encountered in identifying the correct Catholic entity to sue.

   Alternative Dispute Resolution

   As explained I have been engaged in discussions with the legal representatives of the Christian Brothers and their insurer and progress has been made in reaching agreement on an alternative dispute resolution process. I confirm your instructions to attempt to resolve your case in an alternative dispute resolution process with the Christian Brothers and their insurers, Catholic Church Insurance.

4. Clinical records provided by St Vincent’s Hospital indicate that Mr O’Connor attended the emergency department on 4 April 2012, having consumed an overdose of Panadol osteo tablets and fluoxetine tablets.[19]

   [19]Exhibit ‘M’ to the first Dale affidavit, 82.

5. On 8 July 2013, Dr Waller wrote a further letter to Mr O’Connor, again confirming, among other things, his instructions to investigate a common law claim against the Christian Brothers.  This letter stated that Mr O’Connor’s common law claim would be ‘on-hold’ pending resolution of the criminal prosecution of Dowlan and Mr O’Connor’s ‘Fair Work related matter’.[20]

   [20]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 14-16.

6. On 3 June 2014, a file note written by Dr Waller recorded a telephone conversation with Mr O’Connor.  The file note stated that his matter was on hold pending the criminal prosecution of Dowlan.[21]

   [21]Exhibit ‘C’ to the first Dale affidavit, 17.

7. On 2 April 2015, Dr Waller emailed Mr O’Connor stating that, as discussed on 27 February, they could now progress his common law claim.[22]

   [22]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 17.

8. On 15 June 2015, Dr Waller wrote a letter to Mr Harrison of Carroll & O’Dea Lawyers (‘CODEA’) outlining, among other things, Mr O’Connor’s abuse allegations.  In this letter, Dr Waller requested Mr Harrison confirm whether he was instructed to act for the defendant or whether CCI would be involved; whether the defendant would agree to ‘engage in ADR discussions’; and whether the defendant would ‘suspend the running of the limitation period’.  This letter also requested a range of documents and information, including documents containing the appointment, complaint, and conviction histories of Dowlan and the other alleged abusers, as well as information regarding Dowlan’s criminal convictions.[23]

   [23]Ibid, 41-42.

9. On 16 June 2015, Dr Waller or Ms Elisa Zelez of Waller Legal wrote to Mr O’Connor, providing an update on his claim (’Waller Legal 16 June 2015 letter’).  This letter included a section on a ‘potential loss of earnings component’, which was said to be ‘normally quite difficult to include.’  The letter further stated that they did ‘not usually’ and ‘rarely’ include a formal loss of earnings component, instead claiming a more general ‘loss of opportunity’.  Despite this advice, the letter confirmed Mr O’Connor’s instructions to investigate a formal loss of earnings claim.[24]

   [24]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 43-45.

10. On 17 June 2015, Mr Dale of CODEA wrote to Waller Legal stating that they were ‘ascertaining whether there [was] any insurance cover’[25] (‘CODEA 17 June 2015 letter’).

    [25]Exhibit ‘G’ to the first Dale affidavit, 32.

11. On 30 June 2015, Mr Monahan and Mr Creasey of Colin Biggers & Paisley (‘CBP’) wrote to Dr Waller stating they were instructed to act on behalf of CCI and the Christian Brothers.  This letter confirmed, among other things, that their clients were willing to enter into settlement negotiations, did not require legal proceedings to be issued and would ‘suspend the running of any limitations period’ pending the settlement negotiations.[26]

    [26]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 46-47.

12. On 2 December 2015, Professor Lorraine Dennerstein produced a medico-legal report on the instruction of Dr Waller.  Professor Dennerstein diagnosed Mr O’Connor with adjustment disorder with depressed mood, major depressive disorder in remission and noted he abused alcohol and marijuana but that this was also in remission. [27] 

    [27]Ibid, 98-113.

13. On 26 April 2016, Dr Waller wrote to Mr O’Connor confirming, among other things, that her office had been progressing his claim via an alternative dispute resolution process (‘Waller Legal 26 April 2016 letter to Mr O’Connor’).  The letter stated that Waller Legal was awaiting further information about O’Keane and Benson, and ‘information with respect to defendant identification.’  Regarding his ‘potential loss of earnings’ claim, Dr Waller provided an Australian Tax Office authority and Centrelink authority for Mr O’Connor’s completion.[28]  Subsequently, Waller Legal prepared a summary of his taxation and Centrelink records.[29]

    [28]Exhibit ‘J’ to the first Dale affidavit, 57-58.

    [29]Ibid, 59-60.

1. On that same day, Dr Waller also wrote to Mr Creasey (’Waller Legal 26 April 2016 letter to CBP’).  Relevantly, Dr Waller requested Mr Creasey ‘seek instructions to identify the appropriately indemnified entity/entities or person/s to be named as defendants in this matter.’[30]

   [30]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 48-50.

2. On 30 March 2016, the Christian Brothers Oceania Province issued a media statement on their website, stating, among other things that they ‘have and will continue to nominate a proper legal entity, backed by assets, to enable victims to commence civil proceedings, if that is the course victims and their lawyers are seeking.’[31]  There is no evidence that this media statement was provided to Mr O’Connor.

   [31]Exhibit ‘O’ to the first Dale affidavit, 119.

3. On 11 July 2016, Dr Waller provided a written submission to the Royal Commission into Institutional Responses to Child Sexual Abuse (‘Royal Commission’) regarding Issues Paper 11: Catholic Church Final Hearing (‘Dr Waller’s submission to the Royal Commission’).  In a section of the submission titled ‘The Christian Brothers and the identification of a Defendant’, Dr Waller stated:

   Generally, despite repeatedly indicating that they were willing to do so, it has been difficult to obtain from the Christian Brothers the actual identification of a defendant capable of being sued.  Although this situation now seems to be remedied, it took considerable perseverance and a long exchange of correspondence spanning about seven months before actual defendants were offered. …

   A significant improvement in recent months has been the provision by the Christian Brothers of information allowing individual defendants to be identified and the provision of entities capable of being sued.

   If specifically requested, and on a case by case basis, the Christian Brothers may provide the name of relevant individual defendants, normally the provincial and/or the principal of a school at the relevant time.  The Christian Brothers usually indicate if these persons are deceased.  If requested, the Christian Brothers may provide other entities to be named in the event that the relevant individual is deceased and/or agree to indemnify the estate.

   …

   Recent progress has been made on the issue of the identification of entities capable of being sued in Christian Brother matters, including those involving CCI.[32]

   [32]Exhibit ‘I’ to the first Dale affidavit, 43.

4. Further, in a section of the submission titled ‘The Diocese of Ballarat and Bishop Bird’, Dr Waller stated:

   Generally, Bishop Bird, for himself and on behalf of the Diocese of Ballarat, has agreed to the broad ADR process.  Additionally, and to his credit, Bishop Bird has agreed, on a case by case basis, to stand in the shoes of deceased former Bishop Mulkearns and deceased former Bishop O’Collins.  Further, Bishop Bird has agreed not to take “Ellis” type defences in claims against himself and the Diocese of Ballarat.[33]

   [33]Exhibit ‘I’ to the first Dale affidavit, 44.

5. On 4 August 2016, Dr Waller wrote to Mr Creasey, providing Mr O’Connor’s further medical material, employment history, and related documents.  Dr Waller again requested that Mr Creasey ‘seek instructions to identify the appropriately indemnified entity/entities or person/s to be named as defendants in this matter’.  Further, Dr Waller requested Mr Creasey confirm that his clients would agree not to rely on ‘the running of any statutory limitation period.’[34]  As I will discuss further below, on 1 July 2015, legislation was enacted that removed the limitation period for personal injury claims resulting from child abuse.[35]  It is therefore difficult to conceive what ‘statutory limitation period’ is referred to in this letter.

   [34]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 51-54.

   [35]See: Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic), s 27P.

6. On 12 August 2016, Mr Creasey wrote to Ms Zelez stating, among other things:

   In 1973, St Patrick’s College Ballarat was operated by the Congregation of the Christian Brothers in the person of the Province Leader (St Patrick’s Province) and they delegated authority to the Principal of the school at the time. In 1974, the Principal was Br Paul Nangle and the Provincial was Br Patrick Chanel Naughtin (deceased). We confirm that these individuals and/or their estates are indemnified for the purposes of this claim by the Trustees of the Christian Brothers.[36]

   (’CBP 12 August 2016 email’)

   [36]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 55-56.

7. On 24 January 2017, Dr Diane Neill produced a medico-legal report on the instruction of Mr Creasey.  Dr Neill diagnosed Mr O’Connor with chronic major depressive disorder. [37]

   [37]Ibid, 122-138.

8. On 22 February 2017, a file note recorded a telephone conversation between Mr O’Connor and Ms Zelez (‘Waller Legal 22 February 2017 file note’).  It stated that a settlement conference had been scheduled.  It further stated that Ms Zelez ‘explained’ that Dr Neill’s medical report differed from Professor Dennerstein’s medical report, noting that Dr Neill had opined that ‘other factors’ had ‘probably contributed’ to Mr O’Connor’s diagnosis.  Ms Zelez then noted that Mr O’Connor understood that there were ‘other factors.’ [38]

   [38]Exhibit ‘HH’ the affidavit of Joshua Dale dated 14 December 2023 (‘second Dale affidavit’), 20-21.

9. On 3 May 2017, Dr Waller wrote to Mr O’Connor confirming a settlement conference had been scheduled.[39]

   [39]Exhibit ‘II’ to the second Dale affidavit, 23-25.

10. A memorandum to Ms Anita Spitzer of counsel dated 9 May 2017, drafted by Ms Zelez and sighted by Dr Waller, stated that counsel was briefed to appear at the settlement conference and included, among other things, ‘offender and defendant liability information’ (‘memorandum to counsel’).  The memorandum referred to the decision of Trustees of theRoman Catholic Church for the Archdiocese of Sydney v Ellis & Anor (2007) 70 NSWLR 565 (‘Ellis’).  It noted that the Truth Justice and Healing Council had issued guidelines requiring religious orders to assist victims in identifying the ‘correct’ defendant.  Further, it included an extract of the CBP 12 August 2016 email, noting that they had ‘mixed up the dates’ and would need to clarify who the principal and provincial were in 1973, should they need to consider issuing.[40]  This memorandum is consistent with an understanding that the Christian Brothers had nominated defendants that Mr O’Connor could sue.

    [40]Exhibit ‘KK’ to the second Dale affidavit, 31-57.

11. The memorandum to counsel also stated, among other things, that:

    (a)Mr O’Connor had suffered earlier, unrelated sexual abuse;

    (b)Waller Legal were instructed to claim for ‘loss of earnings or lost earning capacity’;

    (c)there was a divergence in medical opinions between Professor Dennerstein and Dr Neill as to the factors that contributed to Mr O’Connor’s diagnosis;

    (d)CBP had provided a complaint history that recorded 35 complaints about Dowlan, including 12 complaints that pre-dated Dowlan’s appointment to St Patrick’s College and 11 complaints relating to St Patrick’s College; and

    (e)during the Royal Commission, documents had become publicly available that showed concerns and complaints about Dowlan’s behaviour between 1971 and 1987.  Despite these documents, it is noted that Nangle had denied knowledge of Dowlan’s sexual misconduct.[41]

    [41]Exhibit ‘KK’ to the second Dale affidavit, 31-57.

12. The settlement conference was held on 11 May 2017.  Mr O’Connor, represented by Ms Spitzer and Ms Zelez, attended the conference.  In what is recorded in a file note as a ‘pre ISC’ conversation between Mr O’Connor and his representatives, Ms Spitzer proposed to make a global offer of $275k inclusive, comprised of general damages, loss of opportunity, out of pocket medical expenses and Medicare repayments.  The file note further recorded Ms Spitzer’s advice that a loss of opportunity claim could be withdrawn if necessary, and that there may be a potential Centrelink repayment issue, although ‘EZ [presumably Ms Zelez] indicated our feeling is no repayment’, and issues with ‘future’.  Further, the file note stated that Ms Spitzer was going to “‘word you [presumably Mr O’Connor] up’ about what they’ll say [presumably the defendant]’.  The file note then listed the different opinions of Dr Neill and Professor Dennerstein.  On a later page, the file note stated ‘anything to ask?’ and then ‘[Mr O’Connor] is noting how much effect of SA by uncle & Wally will have.  Anita is indicating they’ll look at other SAs + r/ship breakdown.’[42]  I infer from the context of these notes that ‘SA’ is shorthand for ‘sexual assault’ or ‘sexual abuse’, and that ‘r/ship’ is shorthand for ‘relationship’.

    [42]Exhibit ‘S’ to the first Dale affidavit, 395-400.

13. This same file note appears to record a summary of both Ms Spitzer and Mr Creasey’s submissions in the joint session of the settlement conference, and Mr O’Connor and his legal representatives’ subsequent conversations.  It records that in the joint session, Ms Spitzer ‘basically’ read out the memorandum to counsel detailing the various complaints about Dowlan and spoke about Dr Neill’s report ‘in detail’.  She then made a global offer of $275,000 inclusive.  Mr Creasey is recorded to have spoken of, among other things: the Dowlan abuse being ‘lower-middle’,  Dr Neill’s report, Mr O’Connor witnessing other physical abuse not being ‘actionable’,  and the unrelated sexual abuse perpetrated by Mr O’Connor’s family member and Wally.[43]  There is no evidence that Mr Creasey responded to Ms Spitzer’s submissions regarding the various complaints about Dowlan.

    [43]Ibid, 400-407.

14. During subsequent conversations held on that day, Mr O’Connor’s legal representatives relayed the defendant’s submissions to Mr O’Connor.  Mr O’Connor was advised that ‘issuing proceedings would be risky’.  These risks were not recorded in the file note.[44]  The record from that day does not contain any discussion of the Ellis defence  between the parties or between Mr O’Connor and his legal representatives.

    [44]Exhibit ‘S’ to the first Dale affidavit, 400-407, 408.

15. Following an exchange of various offers, Mr O’Connor instructed his legal representatives to accept the Christian Brothers’ final offer, being the settlement sum.[45]   

    [45]Ibid, 410.

16. On 15 May 2017, Dr Waller wrote to Mr O’Connor confirming that at the settlement conference he gave instructions to settle his claim for the settlement sum.  This letter included a section titled ‘[d]evelopments in this area of law over recent years’, which provided information on the removal of the limitations period and a potential state and federal redress scheme.  This letter enclosed a deed of release, ‘instructions to settle claim form’, and a Medicare statement.[46]

    [46]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 57-63.

17. On 15 June 2017, a file note recorded a telephone conversation between Mr O’Connor and a legal assistant at Waller Legal.  Mr O’Connor said he did not want to sign the deed and a telephone call was subsequently scheduled with Dr Waller.[47]

    [47]Exhibit ‘V’ to the first Dale affidavit, 424-425.

18. Dr Waller and Mr O’Connor spoke on 21 June 2017.  As recorded in a file note of the same date (’Waller Legal 21 June 2017 file note’), Mr O’Connor said that he had not given instructions to settle and that his claim had not settled as he had not signed the deed.  Dr Waller disagreed, saying that his claim had settled despite him not having signed the deed.  The file note relevantly recorded Dr Waller’s advice that she could ‘do nothing to force them [to] (sic) offer any more money short of issuing proceedings, which (if even possible given the matter is resolved) would be time consuming, expensive, stressful and risky.’[48]  The file note continued on the following page, relevantly stating ‘I am just trying to get my head around whether [Mr O’Connor] has a viable common law litigation claim’ and describing alleged complaints about Dowlan.[49]  I find that this page of the file note was not recording a conversation between Dr Waller and Mr O’Connor, but was a ‘note to self’ written by Dr Waller.  When shown this note, Dr Waller was unable to provide another explanation.[50]

    [48]Exhibit ‘W’ to the first Dale affidavit, 427.

    [49]Exhibit ‘W’ to the first Dale affidavit, 428.

    [50]Transcript of Proceedings, John O’Connor v Trustees of the Christian Brothers (Supreme Court of Victoria, S ECI 2022 01369, Ierodiaconou AsJ, 23, 24 and 29 October 2024) (‘T’), 173.6–174.7.

19. On 1 July 2017, Mr O’Connor and Dr Waller exchanged emails.  Mr O’Connor asked if it was possible to get another opinion and if Dr Waller could file his matter in Court.  Dr Waller’s responsive email provided contact details for the Law Institute of Victoria’s referral services and outlined two difficulties regarding proceedings (‘Waller Legal 1 July 2017 email’).  The first difficulty was that his matter had resolved at the settlement conference.  The second difficulty was expressed as follows:

    … a number of factors would make it very difficult to succeed in a case in court in any event. No one has even (sic) successfully run a trial against a catholic order in Australia. That is, to my knowledge, no person in Australia has ever sued the Christian Brothers (or any other Catholic order) for historical child sexual abuse and won. I think that even if your case could be litigated it would be complex, risky, expensive and it would take a long time. There is a significant risk that you (sic) case would not succeed.[51]

    [51]Exhibit ‘X’ to the first Dale affidavit, 430-431.

20. On 20 July 2017, Ms Paula Shelton of Waller Legal wrote to Mr O’Connor (’Waller Legal 20 July 2017 letter’). [52]  Ms Shelton opined that there was a risk his claim would ‘not succeed in court’ if the Christian Brothers successfully argued that they did not know about the risk Dowlan posed to children before 1973.  She further identified causative issues with his psychological injury.  The letter concluded with her advice that the settlement sum was a ‘reasonable outcome’.[53]

    [52]This letter is incorrectly dated ’20 July 2014’: see T 153.7-10; Exhibit ‘LL’ to the second Dale affidavit, 59-62.

    [53]Exhibit ‘LL’ to the second Dale affidavit, 59-62.

21. In meeting minutes prepared by ‘EA’ of Waller Legal and dated 8 November 2017, it is recorded that Mr O’Connor had sought a second opinion from Angela Sdrinis/Judy Courtin.[54]  Mr O’Connor said he obtained oral legal advice from Judy Courtin.  His evidence was that she confirmed what Waller Legal had already told him, namely there were ‘no guarantees’ of success in litigation, and it would cost him a lot more money.[55]

    [54]Exhibit ‘Y’ to the first Dale affidavit, 434.

    [55]T 64.15-28.

22. On 4 December 2017, Mr O’Connor signed a document titled ‘Instructions to Settle Claim – for Waller Legal’s records’.[56]

    [56]Exhibit ‘MM’ to the second Dale affidavit, 64.

23. On 8 January 2018, Ms Shelton signed a solicitor’s certificate, certifying that she had explained the prior deed to Mr O’Connor and that he had voluntarily signed it in her presence.[57]  As discussed above, Mr O’Connor’s signature on the prior deed is undated.

    [57]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 74.

24. On 15 January 2018, the attorney for the Province Leader signed the prior deed.  It was also signed by the attorneys for the Body Corporate of the Trustees of the Christian Brothers on an unknown date.

25. On 24 January 2018, Dr Waller posted Mr O’Connor a cheque for $101,079.45, being the settlement sum minus Waller Legal’s costs and disbursements and a Medicare repayment.[58]

Witnesses

[58]Ibid, 64-65.

Mr O’Connor

1. Mr O’Connor was a truthful witness who gave evidence to the best of his recollection.  However, I did not find his evidence reliable.  During his oral evidence, it became apparent that he could not recall much of the legal advice and settlement discussions.  Where he could recall, he often could not provide a coherent chronology.   There were inconsistencies in his oral evidence.  This is not a criticism of Mr O’Connor.  He was genuinely attempting to recall events, but it was evident that, at times he was looking back with hindsight to guess what his state of mind may have been at the relevant time.  I refer to two examples.  Both relate to key issues and are discussed further below.

2. First, Mr O’Connor gave evidence by affidavit that the main reason he believed his case was risky was that he was never told the issue of being able to sue the Christian Brothers was removed[59] (after being so advised in the Waller Legal 19 January 2011 letter, although he could not recall receiving this letter).[60]  However, under cross-examination he said that the advice that was most important as to whether he could continue his claim was that it was risky because the defendant may argue it could not reasonably have expected to know about the risk Dowlan posed at the time of the abuse.[61]

   [59]See: plaintiff’s affidavit, [14].

   [60]T 31.11-14.

   [61]T 65.23–66.16.

3. Second, Mr O’Connor gave evidence under cross-examination that he was told of the difficulties of suing the defendant at the settlement conference.[62]  However, he also gave evidence that he could not recall receiving any such advice after 2011,[63] including at the settlement conference.[64]

   [62]T 34.24-35.21, 52.23-31.

   [63]See: T 46.25–47.4.

   [64]T 50.12-19, 58.7–59.6.  

4. Under cross-examination, Mr O’Connor agreed that the documentary evidence was the best record of the advice he received from Waller Legal.[65] 

   [65]T 72.2-4.

Dr Vivian Waller

1. Dr Waller confirmed that she acted for Mr O’Connor in his prior claim between 2011 and 2018.  

2. I found Dr Waller to be an honest witness.  I accept that she genuinely attempted to recall past events.  However, trying to recall events so many years ago gave rise to a degree of hindsight thinking.  Where there is an inconsistency between the plain words of a document authored by Dr Waller, and her interpretation of the document, I prefer to rely upon the document. 

3. As a matter of completeness, I must add that I have accorded no weight to any opinion evidence of Dr Waller and other legal witnesses.  It is for the Court to decide what the applicable law was at the relevant time.

Mr O’Connor’s prior claim – the period between 2011 and May 2017

1. In reviewing the Waller Legal 19 January 2011 letter, Dr Waller said she would have advised Mr O’Connor that his claim was statute-barred and otherwise difficult as the Christian Brothers were an unincorporated association, incapable of being sued.[66]  I accept that evidence; it is consistent with the letter.

   [66]T 83.10-27.

2. Dr Waller acknowledged the legislative change in July 2015 regarding any limitations period, but said that the difficulty in suing an unincorporated institution remained a problem for the entirety of Mr O’Connor’s prior claim.[67]

   [67]T 84.1-12.

3. Dr Waller acknowledged she advised Mr O’Connor regarding a potential claim for economic loss in the Waller Legal 16 June 2015 letter.  However, she said this advice, including that she did not ‘usually’ include a formal loss of earnings component, must be read in the context of the inability to litigate Mr O’Connor’s claim without a viable defendant.[68]  The letter recorded ‘it is normally quite difficult to include a loss of earnings component’. The letter stated it was ‘because the abuse occurred when victims were children and so there are no prior earnings to compare.’[69]  I find this is the reason that Waller Legal gave for its advice.  Namely, that normally it is quite difficult to include the loss of earnings component; I will not infer that the advice should be embedded with further meaning.

   [68]T 141.26–143.3.

   [69]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 44.

1. The Waller Legal 26 April 2016 letter to Mr O’Connor then sought further information from him to properly assess whether loss of earnings was a viable component to include in his claim. 

2. In reviewing the Waller Legal 26 April 2016 letter to CBP, Dr Waller said she often asked for indemnified persons to be named as defendants as that is who the Christian Brothers would provide, however she ‘never gave up on asking for an entity to be sued on behalf of the Christian Brothers.’[70] 

   [70]T 90.13-18.

3. Importantly, Dr Waller conceded that the Christian Brothers had identified the Principal and the Provincial as at 1974[71] and confirmed that the Trustees indemnified these persons and/or their estates.[72] 

   [71]The Creasey affidavit deposed that this date was likely a typographical error and meant to be ‘1973’: see Creasey affidavit, [18(b)(iii)].

   [72]T. 92.24-93.12.

4. Dr Waller’s evidence was that suing Nangle was an ‘inferior vehicle for a common law claim’[73] compared to suing the Congregation of the Christian Brothers as she could not attribute knowledge of other members of the Christian Brothers to Nangle.  Specifically, Dr Waller said there was a complaint in 1971 regarding Dowlan photographing boys in the shower (‘1971 complaint’) however, there was no evidence that Nangle or Naughtin knew of that complaint.[74]  In cross-examination, Dr Waller accepted that the Royal Commission did not make any findings regarding the 1971 complaint.[75]  Dr Waller otherwise said that providing a deceased individual to name as a defendant would raise the risk of a permanent stay.[76]

   [73]T 93.3-8.

   [74]T 98.2-11.

   [75]T 186.13-23.

   [76]T 207.16-22.

5. In cross-examination, Dr Waller conceded that before the introduction of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (‘LID Act’), there was no legal basis upon which to issue proceedings against a corporation ‘on behalf of’ an unincorporated association.[77]  Yet she sought, with much difficulty, to explain how other individuals, namely Bishop Bird, were nominating themselves to accept the liability of their predecessor.[78]  I found this evidence unclear.  It is immaterial.  As I have stated, legal matters are for the Court to determine.

   [77]T 141.4-10.

   [78]T 177.23–182.7.

6. In reviewing her submission to the Royal Commission, Dr Waller said that she was ‘vaguely complimentary and encouraging’ of the approach adopted by the Christian Brothers, being their willingness to name individual defendants, as this was a ‘slightly better situation than some other Catholic entities’.[79]

   [79]T 201.2-30.

Mr O’Connor’s prior claim - the period following May 2017

1. Dr Waller said that following the settlement conference, she spoke with Mr O’Connor.  In reviewing the Waller Legal 21 June 2017 file note, Dr Waller said that her advice that issuing proceedings would be ‘risky’ was a reference to the difficulty in establishing the liability of the Christian Brothers due to the existence of the ‘Ellis defence’.  She said she would not have necessarily used these words with Mr O’Connor.[80]  Dr Waller provided the same explanation for using the word ‘risky’ in the Waller Legal 1 July 2017 email.[81]  Those documents are cited above.  A plain reading of the file note and email does not convey the advice that the proceeding was risky because of the Ellis defence.  Unlike the Waller Legal 19 January 2011 letter, there was no reference to ‘difficulties encountered in identifying the correct Catholic entity to sue.’[82]  The reference to ‘even if your case could be litigated’ [emphasis added] must be read with the preceding paragraph that the matter was resolved at the settlement conference and that presented a difficulty in going to Court. 

   [80]T 102.18-29.

   [81]T 104.6-21.

   [82]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 12.

2. There is another way of interpreting the Waller Legal 1 July 2017 email.  It is that the references to ‘even if’ and no person successfully suing a Catholic order constitute a reference to the Ellis defence. 

3. On balance, however, plain reading is the better interpretation.  Moreover, it is consistent with the Waller Legal 20 July 2017 letter sent only 19 days after the Waller Legal 1 July 2017 email.  The Waller Legal 20 July 2017 letter was a detailed advice of the weaknesses in Mr O’Connor’s case.  It did not refer to the Ellis defence.

Other claims

1. Dr Waller was shown a range of correspondence exhibited to the Monahan and Harrison affidavits and about other clients of her firm and the Christian Brothers and/or other institutions with CCI involvement.  Dr Waller said this correspondence illustrated that the Christian Brothers and CCI were unwilling to provide an entity to sue.[83] Further, she said she never received any correspondence in any matter in which the Christian Brothers said they would not rely on the ‘Ellis defence’,[84] and that Mr Monahan had said that the Christian Brothers would take every available defence.[85] 

   [83]T 117.16-24.

   [84]T 119.6-10.

   [85]T 192.3-7.

2. Dr Waller also identified correspondence between her office, and Mr Monahan and Mr Harrison, dated between 2011 and 2012, about discussions and mediations in other clients’ claims against the Christian Brothers.  She identified a letter dated 23 February 2012, in which Mr Monahan stated that ‘any and all relevant defences in relation to liability for the claim, damages and generally can and will be raised’[86] (’Monahan 23 February 2012 letter’).  She said it became ‘clear’ that the Christian Brothers relied on both a limitations issue and an ‘Ellis-type defence’ in these mediations.[87]

   [86]Documents tendered and marked Exhibit B, 8.

   [87]T 193.29-194.3.

3. However, as already outlined by the CBP 12 August 2016 email, it was clear that with respect to Mr O’Connor’s case, the defendant did not rely on an Ellis defence.  Two individuals had been nominated.  They were individuals who had responsibilities within St Patrick’s College and indeed, Mr O’Connor had alleged one of those individuals had physically abused him.  The defendant’s nomination of individuals was reflected in the memorandum to counsel, which included an extract from the same email after referring to the Ellis defence.

Patrick Monahan

1. Mr Monahan deposed that he acted for CCI from about 1999 until 2019 or 2020 and was the partner with the conduct of Mr O’Connor’s prior claim until around July 2016, at which point Mr Creasey assumed carriage.

2. In response to the correspondence identified by Dr Waller regarding a range of mediations in 2012, Mr Monahan recalled debating legal liability.  He deposed that ‘legal liability’ meant the factual issues that make a claim, such as whether the abuse occurred, whether it was proven, the circumstances of the abuse, and whether the circumstances attracted the liability of an appropriate person covered by insurance.[88]  He recalled disagreeing with counsel briefed by Dr Waller about whether allegations in other countries could go towards establishing the liability of the Christian Brothers in a particular case.[89]

   [88]T 224.13-20.

   [89]T 224.24–225.12

3. When shown the Monahan 23 February 2012 letter, Mr Monahan said his comment regarding relevant defences was made in the context of approaching the claims under common law as opposed to under the Towards Healing framework.[90]  However, he conceded that, in theory, an ‘Ellis v Pell point’ could be considered a relevant defence but said it was never part of his approach.[91]

   [90]T 234.2-20.

   [91]T 234.21-24.

4. Mr Monahan deposed that by 2014, he was corresponding with Dr Waller regarding a process in which her office would provide certain information to his office about a claim, including what they believed to be the relevant time period.  His office would then provide information regarding the identity of an appropriate defendant.  He said that depending on the information provided, he would identify the following as relevant persons: the Provincial as they were ‘effectively the boss’ of the order and could direct other Christian Brothers to ‘where they needed to go and work’;[92] the Principal due to their ‘overall management responsibility for the school’;[93] and/or any Principal or Provincial with prior knowledge of an offender posing a risk to children.[94]  He said these people were identified to avoid the issues that arose in Ellis.[95]

   [92]T 229.1-11.

   [93]T 229.13-21.

   [94]T 229.24–230.2.

   [95]T 231.9-21.

5. From 2014 onwards, Mr Monahan said that he never raised an ‘Ellis v Pell type defence’ in a mediation or informal settlement conference nor discounted a claim when assessing quantum due to the availability of an ‘Ellis v Pell type defence’.  While he could not recall saying to Dr Waller that the Christian Brothers would take every available defence, he said he would debate ‘other issues of legal liability, causation and the facts’[96] at mediations and informal settlement conferences.

   [96]T 231.22–232.14.

6. Mr Monahan deposed that he could not have invented a nominal corporate entity for Mr O’Connor to sue that would attract liability, as CCI’s insurance policy was written on an occurrence basis and would not cover a fictional entity.[97]

   [97]T 237.29–238.13.

7. I found Mr Monahan to be a truthful witness.  His evidence was unchallenged save in two respects.  First, that Dr Waller gave evidence that he had told her during discussions about her other clients in 2011 to 2012, that he would take every available defence.  Mr Monahan could not recall this, although he did not deny it.[98]   Given this, I accept Dr Waller’s evidence.  Second, it was submitted that he construed the ‘Ellis v Pell type defence’ very strictly.  So much was evident, however it is unsurprising given the technical nature of that defence.  This defence is discussed further below.

   [98]T 231.22-31.

Howard Harrison

1. Mr Harrison deposed that he has acted for the Christian Brothers since around 1993, including in claims where the Christian Brothers’ insurer would instruct their own solicitors, and he would adopt a ‘watching brief’ on behalf of the Christian Brothers.[99] 

   [99]Affidavit of Howard Gerard Harrison, sworn on 21 August 2024 (‘Harrison affidavit’), [6].

2. He said his office exchanged initial correspondence with Waller Legal regarding Mr O’Connor’s prior claim.  Their final correspondence was dated 17 June 2015.

3. The balance of Mr Harrison’s evidence was not specific to Mr O’Connor’s prior claim. He deposed to his involvement with Dr Waller in other claims, with his affidavit exhibiting a range of correspondence between Dr Waller and himself regarding the identification of relevant individuals or entities in respect of other claims.

4. Mr Harrison deposed that ‘from at least 2014 or early 2015’ he had received standing instructions orally from Mr Shane Wall, the Executive Officer of the Professional Standards Office of the Christian Brothers, as well as from other employees, ‘not to raise or rely on the Ellis decision.’[100]

   [100]Harrison affidavit, [22]-[23].

5. Mr Harrison’s evidence was uncontradicted.

Daniel Creasey

1. Mr Creasey was employed by CBP from September 2014 until September 2017.  He acted for CCI in Mr O’Connor’s prior claim (up until September 2017).

2. While Mr Creasey did not have a specific recollection of Mr O’Connor’s prior claim, he deposed that he never raised nor relied upon ‘the Ellis defence’ at any informal settlement conference during his employment at CBP.[101]

   [101]Affidavit of Daniel Kevin Creasey, affirmed on 24 July 2024 (‘Creasey affidavit’), [17].

3. Mr Creasey’s evidence was uncontradicted. 

Joshua Dale

1. Mr Dale has been employed by CODEA since 2014.  He is the Christian Brothers’ current solicitor and appears to have had some involvement in Mr O’Connor’s prior claim.[102]  He deposed that in late 2014 or 2015, Mr Wall verbally gave him ‘standing instructions not to raise or rely on the defence known as the “Ellis v Pell defence”’.[103]

   [102]See: CODEA 17 June 2015 letter.

   [103]First Dale affidavit, [43]; Affidavit of Joshua Mark Dale sworn on 29 July 2024 (‘fourth Dale affidavit’), [8]-[10].

2. Mr Dale’s evidence was uncontradicted.

3. As I have stated, I give no weight to the legal opinions offered by the witnesses.  Other than that, and the finding above where Mr Monahan could not recollect a conversation but Dr Waller could, I accept the evidence of the defendant’s witnesses.

Legislation and applicable principles

1. Sections 27QA and 27QD of the LAA allow Mr O’Connor to apply to set aside a settlement agreement of a previously settled cause of action. Section 27QE sets out the Court’s powers in response to such an application:

   Court’s powers—previously settled causes of action

   (1)On an application under section 27QD or otherwise in a proceeding on an action referred to in section 27QA(2), the court, if satisfied that it is just and reasonable to do so—

   (a)may make an order setting aside the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action, whether wholly or in part; and

   (b)may make any other order that it considers appropriate in the circumstances.

   (2)In hearing and determining any action to which this Division applies on a previously settled cause of action, the court, if satisfied that it is just and reasonable to do so—

   (a)when awarding damages in relation to the action, may take into account any consideration (whether monetary or non-monetary) paid, payable or given or to be given under—

   (i)a settlement agreement set aside under this section; or

   (ii)any other agreement related to the settlement that has been set aside under this section; and

   (b)when awarding costs in relation to the action, may take into account any amounts paid or payable as costs under—

   (i)a settlement agreement set aside under this section; or

   (ii)any other agreement related to the settlement that has been set aside under this section.

2. The Court of Appeal considered these provisions in Trustees of the Christian Brothers v DZY (a pseudonym) (‘DZY’).[104]  In Jens v The Society of Jesus in Australia (‘Jens’),[105] I summarised the Court of Appeal’s reasoning as follows:

   [104][2024] VSCA 73 (‘DZY’).

   [105][2024] VSC 329 (‘Jens’).

   In DZY, The Court of Appeal emphasised the ‘centrality of the actual influence’ of the time and legal barriers in considering ’whether it is just and reasonable to set aside a settlement agreement’. The Court of Appeal stated that ‘in an ordinary case’, one of those barriers ’would play some part in explaining why the claimant entered into the settlement agreement’. Moreover:

   If a finding was made that one or other of those legal barriers had a material impact on the claimant’s decision to settle his or her claim, a cogent ground would exist to conclude that it was just and reasonable to set the settlement aside. Of course, being fair to both sides, it would be necessary to consider the effect on and any prejudice to the respondent in deciding whether to set it aside. If no finding was made that either legal barrier had such an impact, it is doubtful that any cogent ground would exist to conclude it was just and reasonable to set the settlement aside.

   As to what constitutes just and reasonable, the Court of Appeal stated the following principles in DZY:

   It is important to pay proper regard to the fact that Parliament has not sought to define the factors that are to be taken into account in determining whether it is just and reasonable to set aside a judgment or a settlement. Nevertheless, the text alone is not the only measure by which the statute is to be construed. Bringing context and purpose into the process of construction, it is equally important, in our view, to pay proper regard to the nature of the power being exercised and the particular mischief that the exercise of that power was intended to remedy. As explained, we take the view that the exercise of the power under these sections is not discretionary. That is of some importance. The mischief to be remedied was the unfairness to claimants of having judgments entered or settlements made when their legal rights or bargaining power were constrained by one or both of two specific legal obstacles to their claims.

   We do not deny that, other than the actual influence of those legal obstacles, there could be additional factors that might legitimately be taken into account. Potentially those factors might include, for example, prospects of success (that is, that the claimant could do better than he or she had previously done by the settlement); the respondent’s conduct in the settlement process; unequal bargaining power; any feelings of guilt or shame (compounded or not by the burden of giving evidence and being subject to cross-examination); and (as noted) prejudice to the respondent.

   As we would put it, however, consideration of the actual influence of the two legal obstacles is central to the determination of whether it is just and reasonable to set aside a settlement. Because of the importance to the integrity of the adversarial legal system of adherence to judgments and settlements, apart from the influence of those obstacles, other factors should be seen as supportive rather than leading factors in determining whether it is just and reasonable to set aside a settlement.[106]

   [106]Jens, [94]-[95] (citations omitted).

3. I adopt the principles in DZY. Before turning to the application of those principles, there is another issue to address, which is the scope of the ‘Ellis defence’ legal barrier. 

Is there a direct relationship between the Ellis defence and the attribution of knowledge?

1. Mr O’Connor submitted that the Court should look at what exactly the LID Act achieved. He says the LID Act went beyond just removing the strict interpretation of the Ellis defence – it has been construed to attribute the fictitious organisation with corporate knowledge, responsibility and power.

2. Relatedly, Mr O’Connor also submitted that the indemnification of the Provincial and the Principal at the time of his abuse would not have allowed him to argue that there had been a systematic failure.  Nor would it have allowed Mr O’Connor to access and argue the ‘institutional knowledge’ of the defendant, including complaints about Dowlan made to other members of the defendant.  This may be observed from the current pleadings, which show that establishing the defendant's liability required the aggregation of the knowledge of many people over many years.

3. By these submissions, Mr O’Connor effectively invites the Court to find that, before the LID Act, denial of foreseeability on the basis that an individual nominated by the Christian Brothers did not know about prior abuse is an ‘Ellis-type’ defence.  And therefore, if the Christian Brothers nominated an individual pre-LID Act and denied knowledge of past abuse, it was taking an Ellis-type defence.

4. It is necessary to describe the legal barrier known as the Ellis defence and then the LID Act, which removed that barrier. As will be shown, the issue of knowledge was consequential to the Ellis defence, rather than the defence itself.

5. In Ellis, the plaintiff had issued a proceeding claiming damages for child sexual abuse against former Cardinal George Pell, Archbishop of Sydney for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney (‘first defendant’), the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (‘second defendant’), and the alleged offender.  It is unnecessary for me to reiterate the entirety of the findings.  Relevantly, however, Mason P held, with the agreement of Ipp JA and McColl JA, that the first defendant could not be held liable as a representative or as a corporate sole for the obligations of his predecessors,[107] nor could the second defendant, as an unincorporated association, be sued.[108]

   [107]Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor (2007) 70 NSWLR 565 (‘Ellis’) (Mason P), [75], [93], [152], [181].

   [108]Ibid, [46]–[47], [61].

1. The Ellis defence was abolished by the LID Act on 1 July 2018. Keogh J, in O’Connor v Comensoli,[109] summarised the extrinsic material of the relevant bill.  Mindful, as his Honour was, not to detract from the plain reading of the statute,[110] I gratefully adopt his Honour’s summary at [141] to [144].[111]

   [109]O’Connor v Comensoli [2022] VSC 313 (Keogh J) (‘O’Connor v Comensoli’).

   [110]Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234, 262, [96] (Beach, Kaye and Osborn JJA).

   [111]O’Connor v Comensoli, [141]-[144].

2. In construing the LID Act, his Honour held that the Act's main purpose was to allow plaintiffs to bring a claim against an unincorporated NGO as if it was incorporated at the relevant time, regardless of when the alleged abuse occurred. However, this would not resolve any factual questions, such as:

   the structure of the NGO at the time of the events giving rise to the cause of action, and the nature of relationships between the NGO, the plaintiff, the offender and other persons relevant to questions of duty, breach and vicarious liability.[112]

   [112]O’Connor v Comensoli, [156].

3. In cases such as these, a central issue is foreseeability of risk, particularly whether the plaintiff can prove that the defendant knew about prior abuse.[113] The LID Act did not change this. However, the effect of the LID Act is that the defendant is treated as if it were a corporation at the time of the cause of action.[114]  This means ‘the usual rules of attribution and agency’ to a corporation will apply.[115] Accordingly, whilst the LID Act did not address the question of the defendant’s knowledge, it impacted it by providing an organisational defendant to sue. It does not follow that, prior to the LID Act, if a defendant nominated an individual who claimed they had no knowledge of prior abuse, this amounted to reliance on an Ellis defence. And certainly, it does not follow that if a nominated individual said they had no knowledge of past abuse, that was effectively raising an Ellis defence.

   [113]In the current proceeding, this is not an issue as the defendant has admitted liability in respect of the Dowlan abuse at [14(b)(i)] of the amended defence and subject to proof, has admitted liability in respect of the other alleged abusers at [14(b)(ii)] of the amended defence.

   [114]O’Connor v Comensoli, [288].

   [115]Ibid, [289].

4. Here the defendant did not rely on the Ellis defence, nor did it rely on an Ellis-type defence.  The defendant nominated Nangle and Naughtin and confirmed that they and their estates were indemnified.  This removed the legal barrier.  The nomination by the CBP 12 August 2016 email stated that the school was operated by the defendant in the person of the Province Leader (Naughtin, deceased), who delegated authority to the Principal (Nangle).  This was not a situation where strangers to the school were nominated.  Accordingly, the Ellis defence was not, in actual fact, a barrier to Mr O’Connor at the time of settlement.

5. Notably, Mr O’Connor was never informed of the nomination and was unaware this barrier was effectively removed.  Given this, the nomination has no direct bearing on what materially impacted Mr O’Connor’s decision to enter the prior deed. 

Is it just and reasonable to set aside the prior deed in whole or in part?

1. I will first consider the leading factor.

Did the legal barriers materially impact Mr O’Connor’s decision to enter into the prior deed?

1. At the time of Mr O’Connor’s settlement conference, the LAA had been amended to remove the time limit to bring an action about the physical or sexual abuse of a minor, and any accompanying psychological abuse.[116] 

   [116]Limitations of Actions Act 1958 (Vic) (‘LAA’) s 27P.

2. While Mr O’Connor’s written submissions addressed the impact of a limitation period, he correctly conceded, during the hearing, that a limitation period could not have acted as a barrier in his prior claim.  As such, it is unnecessary to reiterate his submissions on that issue.  The limitation period did not impact his decision to enter into the prior deed.

3. The remaining legal barrier that may have impacted Mr O’Connor’s decision to enter into the prior deed was the Ellis defence.

Mr O’Connor’s submissions

1. At no time in Mr O’Connor’s prior claim did the defendant offer an indemnified entity that had the necessary qualities to establish a duty of care to Mr O’Connor and a breach of such duty.  The defendant’s failure to offer ‘by a clear and unequivocal statement’,[117] an entity of this nature, was a failure to remove the barrier in Ellis and as such, an insuperable barrier to Mr O’Connor’s prior claim.

   [117]Pearce v Missionaries of the Sacred Heart [2022] VSC 697, [93].

2. The Executive Director of the defendant, Mr Wall, could not affirmatively state that during the prior claim, he or any representative of the defendant told Mr O’Connor that it would not rely on the Ellis defence or an Ellis-type defence.  In fact, as is borne out in the defendant’s answers to Mr O’Connor’s interrogatories, the defendant had relied on the Ellis defence in other proceedings both before and after 2015.

3. It is contentious whether the 1971 complaint occurred, but this is immaterial.  The complaint was made to Brother Stewart, who was not a defendant offered to Mr O’Connor.  Even if he had been offered as a defendant, Mr O’Connor would have had difficulty proving that Brother Stewart owed him a duty of care as he was not the Principal during the relevant period.

4. Mr O’Connor’s evidence is that he believed that a problem existed with suing the Christian Brothers and that this problem meant he would be unlikely to succeed if he took his matter to Court.  As such, he had to accept the settlement sum.

5. Dr Waller’s evidence is that she constantly discussed the Ellis defence with counsel.  Her evidence was factual and should be accepted.  If accepted, it is clear that she was considering this factor when advising Mr O’Connor.  This is supported by the Waller Legal 1 July 2017 email.  Mr O’Connor’s claim was discounted due to the difficulties in suing the Christian Brothers.

Defendant’s submissions

1. The primary question for the Court is whether the difficulties associated with suing a proper defendant contributed to Mr O’Connor’s decision to enter into the prior deed.  It is clear from the evidence that it did not.

2. The evidence shows that the defendant did not raise or rely upon a defence associated with a proper defendant, nor discount the claim due to the availability of such a defence. 

3. Mr O’Connor submitted that the defendant relied on the Ellis defence in other claims.  However, whether the defendant relied upon the Ellis defence before 2015 is immaterial given Mr O’Connor’s claim resolved in May 2017;  at no stage between 2015 and January 2018 did the defendant rely upon the Ellis defence in any proceeding regarding alleged sexual abuse; and on one occasion between 15 January 2018 and 22 April 2022, the defendant pleaded that an individual within an unincorporated organisation was only possessed with their own knowledge as the Christian Brothers did not operate the relevant school.

4. The only advice Mr O’Connor received from Waller Legal regarding the proper defendant difficulties was contained in the Waller Legal 19 January 2011 letter – six years before the settlement conference.

5. By 2014 to 2015, being the critical period, an approach had been established with Waller Legal where the defendant would nominate indemnified individuals who could be sued and who were importantly, covered by insurance policies.  In line with this practice, on 12 August 2016, the defendant nominated Nangle and Naughtin.  After this email was sent, Dr Waller did not raise any concerns about the adequacy of the individuals provided or request details of Naughtin’s executor.  Nor did she advise Mr O’Connor regarding the nomination of the two individuals.  Only at the settlement conference was the 1971 complaint, which is not accepted, raised.  There was, therefore, no opportunity for the defendant to name an additional defendant.

6. The contemporaneous file notes of the settlement conference indicate that the only issues raised by Mr O’Connor’s solicitors were causative factors identified in the medico-legal reports, the fact that his psychiatric injury was deemed partially treated and Centrelink repayment issues.

7. The causative issues with Mr O’Connor’s psychiatric injury were also raised after the settlement conference, in the Waller Legal 20 July 2017 letter.  Waller Legal referred to the causation issues, opining that the settlement sum was ‘reasonable’.  This letter does not state that the quantum of the settlement was in any way impacted by the proper defendant or Ellis-type issue.

8. Dr Waller gave evidence that where a claim involved CCI, the defendant would take every available defence.  This, alongside other parts of her evidence, should not be accepted.  Dr Waller’s evidence was a product of hindsight, fuelled by recent, unrelated litigation against her firm and an attempt to re-engineer the past.  Contemporaneous written records did not support her evidence.  Further, any attempt by her to imbue these written records with certain meaning, should be rejected.

9. Mr O’Connor’s evidence was that he was advised that his prior claim might not be successful and that there were no guarantees.  This evidence may be accepted; it is common advice in litigation.  However, it does not show that difficulties with suing a proper defendant played a role in his decision-making.

Analysis

1. At the outset, and to address Mr O’Connor ‘s submission as to the defendant’s conduct in other matters: I do not accept that the defendant’s answers to Mr O’Connor’s interrogatories created uncertainty.  The fact that the defendant pleaded and/or relied upon the Ellis defence in one proceeding before 2015 is irrelevant as Mr O’Connor’s claim was ‘on hold’ before 2015.  Any reliance on the Ellis defence after Mr O’Connor’s settlement is equally irrelevant as it could not have impacted his decision to enter into the settlement.  I otherwise reiterate the findings above regarding the Ellis defence and Ellis-type defences, and the defendant’s nomination of Nangle and Naughtin.

2. As discussed, although there was oral acceptance of the settlement sum at the settlement conference on 11 May 2017, Mr O’Connor did not enter into the prior deed until an unknown date in January 2018. 

3. I find that the Ellis defence was not a legal barrier that materially impacted on Mr O’Connor’s decision to enter into the prior deed.  My reasons follow.

   Ellis defence not a material factor impacting on Mr O’Connor’s decision

4. The evidence shows that the Ellis defence was not a material factor impacting on Mr O’Connor’s decision to enter into the prior deed.

5. Mr O’Connor deposed that when he first contacted Waller Legal in 2011, he was advised that he ‘did not have much chance’ of receiving compensation for the abuse he suffered at St Patrick’s College due to the expiry of the limitation period and because ‘it was not possible to sue a religious order like the Christian Brothers.’[118]  In re-examination, Mr O’Connor said he could not recall receiving any advice that the difficulties identified in the Waller Legal 19 January 2011 letter had been removed.[119] I accept that.  There is no evidence to suggest he was so advised.   In his affidavit, Mr O’Connor similarly deposed that he was never told that the issue of being able to sue the Christian Brothers had been removed.[120]  However, given the contradictions in his evidence, which I will now explain, I do not accept Mr O’Connor’s affidavit evidence that this was the ‘main’ reason he believed his case was ‘risky’.

   [118]Plaintiff’s affidavit, [11].

   [119]T 76.5-13.

   [120]Plaintiff’s affidavit, [14].

6. In cross-examination, Mr O’Connor gave evidence regarding the advice he received before and at the settlement conference.  At one point, Mr O’Connor said that following the Waller Legal 19 January 2011 letter, he was advised of the difficulties with suing the Christian Brothers around the time of the settlement conference,[121] with his understanding being that it was difficult because ‘who was supposed to be sued?’[122]  This was contradicted by his later oral evidence.  Mr O’Connor was asked whether the difficulties with continuing his case were to do with being able to identify a person or entity or whether it was to do with being able to prove the elements of a negligence claim.  He was asked whether or not he understood the reason he was being told his case was difficult.  In response he stated ‘No… I was just told that … “You need to accept it,” because… I may not be successful in pursuing this.’[123]

   [121]T 34.20-35.4.

   [122]T 35.17-18.

   [123]T 36.1-17.

7. Importantly, when asked directly whether he could recall receiving any advice on the day of the settlement conference, or at any time between 2011 and May 2017 regarding difficulties with suing a particular person or entity, Mr O’Connor said he could not recall any such advice.[124]  This directly contradicted his oral evidence that he had been so advised at the time of the settlement conference.  I find he was not advised he had difficulties because of the Ellis defence on the day of the settlement conference.  In addition to Mr O’Connor conceding he could not recall such advice, there was no contemporaneous evidence to suggest he was so advised.  None of the notes from the settlement conference reference this concern, nor does the subsequent legal advice.  This is perhaps unsurprising in circumstances where the defendant had nominated Naughtin and Nangle who could be sued or whose estates could be sued, and were indemnified by the Trustees.

   [124]T 58.7-60.6.

8. Mr O’Connor could not recall receiving any advice between 2011 and May 2017 regarding the strength of his case or the impact that the unrelated sexual abuse he suffered may have had on it.[125]  However, he did receive legal advice in that period and, as he said, the written records are the best records of the advice he received from Waller Legal.[126]  This advice was that his case was risky.  It did not refer to the Ellis defence or Ellis-type defences.

   [125]T 60.10-26.

   [126]T 72.2-4.

9. In re-examination, Mr O’Connor was shown the Waller Legal 1 July 2017 email, in which Dr Waller opined that there was a risk his case would not succeed.  Mr O’Connor said this advice did not surprise him as this is what he had always believed.[127]  However, as outlined above, this advice that the proceeding was ‘risky’ did not refer to the Ellis defence. 

   [127]T 77.7-9.

10. Indeed, after 2011, the advice to Mr O’Connor about the risks of the proceeding referred to other factors.  This advice is difficult to reconcile with Mr O’Connor’s affidavit evidence that he ‘always understood that [the Ellis defence] was one of the main reasons why [his] case was so risky and unlikely to succeed if taken to court.’[128]  And that by the time of the settlement conference he understood it ‘would be a gamble to try and prove the Christian Brothers could be sued for the abuse’[129] and that it was ‘too difficult to sue the Christian Brothers’.[130]  I find that Mr O’Connor did receive advice about the other risk factors.  I will turn to that advice next.

    Other risk factors

    [128]Plaintiff’s affidavit, [14].

    [129]Ibid, [15].

    [130]Ibid, [16].

11. I find that at the time of the settlement conference, and later when he signed the prior deed, there were risk factors other than the Ellis defence that had a material impact on Mr O’Connor’s decision to enter into the prior deed.  In short, I find that Mr O’Connor elected to take the sum offered, although he did not consider it high enough, rather than face the uncertainty of litigation.  He did so because he believed that he had a weak case.[131] 

    [131]T 75.31–76.4.

12. Mr O’Connor said he was advised that there was no guarantee that he would be successful if he pursued the matter further, and that it would cost him money to pursue the matter further.[132]   He believed he had no alternative avenue to pursue the matter.[133]  He ‘badly needed money by this stage’.[134]

    [132]T 63.23–64.28; 68.26-28.

    [133]T 69.20-22.

    [134]Plaintiff’s affidavit, [17].

13. Further, following the settlement conference, Mr O’Connor said he was told by his lawyers that there was no guarantee he would be successful if he pursued his case and that it would be costly.[135]  He said he sought a second opinion from another lawyer who confirmed this advice.[136]

    [135]T 63.23-26, 64.1-14.

    [136]T 64.23-28.

14. The Waller Legal 22 February 2017 file note records the solicitor advising Mr O’Connor of differing medical opinions.  The advice notes ‘other factors’ (presumably other causal factors of his medical condition).  It records that Mr O’Connor understands that there are other factors.  

15. The Waller Legal 20 July 2017 letter refers to a risk that Mr O’Connor’s claim would not succeed because the defendant would likely argue it did not, and could not, reasonably have been expected to know about the risk Dowlan posed at the time of the abuse in 1973.  Under cross-examination, although unable to recall the specific letter, Mr O’Connor agreed with the substance of this advice and said that this aspect of the advice was the most important regarding whether he could continue or not.[137] 

    [137]T 66.6-17.

16. The Waller Legal 20 July 2017 letter also referred to the Court likely finding abuse by Dowlan to be a significant cause of his medical condition but there were ‘other contributing causes’.[138] 

    [138]Exhibit ‘LL’ to the second Dale affidavit, 59-62.

17. Mr O’Connor gave evidence as to why he believed his case was risky.  I find that at the time of the settlement conference and later when he signed the settlement deed, there were other risk factors that had a material impact on Mr O’Connor’s decision to enter into the prior deed.  In particular, risks as to causation given the divergent medical opinion, his mother’s physical abuse, and the sexual abuse he suffered prior to the abuse by Dowlan.  Further, there was a risk as to liability identified in the sense of whether the defendant could reasonably have known Dowlan presented a risk at the time he abused Mr O’Connor in 1973.  This alleged knowledge of the defendant was outlined in the memorandum to counsel.

18. For these reasons, I do not find that the legal barriers materially impacted Mr O’Connor’s decision to enter into the prior deed.  This does not favour setting aside the prior deed on the basis it is just and reasonable to do so.  I will also reiterate that, applying DZY, the ‘actual influence’ of the legal barriers is the ‘central’ factor.  The other factors subsequently discussed are ‘supportive’.  Turning now to the supportive factors.  

Mr O’Connor’s legal advice and representation; bargaining power

Mr O’Connor’s submissions

1. Mr O’Connor did not advance any arguments about his legal representation or any unequal bargaining power, save for his submissions outlined above regarding the inherent unequal bargaining power due to the existence of the Ellis defence.   As discussed above, he gave evidence about his legal advice and the settlement conference.

Defendant’s submissions

1. Throughout the prior claim, Mr O’Connor was represented by Waller Legal.  At the settlement conference, he was also represented by Counsel.

2. There was no contemporaneous evidence that Mr O’Connor’s legal representation pressured him to resolve his claim.

3. If Waller Legal failed to properly advise Mr O’Connor that the defendant had provided two individuals who could be sued, this failure was not caused by the defendant.  It would be prejudicial to the defendant to now lose the protection provided by the prior deed through no fault of its own.

Analysis

1. Mr O’Connor acted consistently with the legal advice he received by entering into the prior deed, namely that he should accept the settlement sum because his case had risks.  The legal advice he received had a material impact on him entering into the prior deed.  I will now turn briefly to some of the legal advice he received, noting there has already been some discussion of it, and then address bargaining power.

Legal advice

1. Mr O’Connor was legally represented at all relevant times.  Mr O’Connor was advised of difficulties identifying the correct entity to sue in the Waller Legal 19 January 2011 letter.  As discussed, Mr O’Connor’s evidence, consistent with the documentary evidence, is that he was not advised about the proper defendant issue between this initial letter and the settlement conference on 11 May 2017. 

2. The defendant’s nomination of Nangle and Naughtin was unambiguous.  It enabled Mr O’Connor to issue a proceeding.  Consistently with this, Waller Legal did not again advise Mr O’Connor that the Ellis defence was a legal barrier after receiving that nomination. 

3. There is no evidence that Dr Waller or an employee of Waller Legal told Mr O’Connor about the possibility of suing Nangle or Naughtin.  Importantly, there is no cogent evidence that Waller Legal advised Mr O’Connor that suing Nangle or Naughtin would present difficulties with attributing knowledge to a defendant.  Whilst there were references in advice to the difficulties of establishing knowledge of prior abuse, it was not suggested this was because individuals rather than a corporate entity had been nominated.  

4. Mr O’Connor submitted there were better alternatives than suing Nangle or Naughtin.  This does not advance the issues here in circumstances where he was not advised that the Ellis defence remained a barrier. 

5. As described above, Mr O’Connor was advised at various times by Waller Legal that his case was risky, including during the settlement conference.[139]

   [139]See e.g.: exhibit ‘S’ to the first Dale affidavit, 408.

6. During the settlement conference, Mr O’Connor said he instructed his counsel, Ms Spitzer, to make an opening offer of $275,000.[140]  This opening offer is recorded in the file note of 11 May 2017.[141]  Christian Brothers counter-offered $90,000.[142]  The file note records that he instructed his counsel to make various offers during the negotiation.[143]  It then records that Mr O’Connor confirmed instructions to accept the offer of $135,000 all inclusive.[144]  During the settlement conference, as discussed below, he was advised that it would be risky to issue legal proceedings.

   [140]T 51.5-6.

   [141]Exhibit ‘S’ to the first Dale affidavit, 404.

   [142]Ibid, 408.

   [143]Ibid, 409.

   [144]Ibid, 410.

7. Mr O’Connor agrees that the matter ended up settling at $135,000 inclusive of costs.  However, he does not believe he agreed to accept the settlement sum verbally or in any other way, so that is why he did not ‘sign the paper’.[145]  By not signing, he felt the negotiation had not concluded in an agreement.[146]  He said he felt pressured and rushed to make a decision by his legal representatives.[147]  He said he felt lucky to have left the settlement conference without signing a deed as he felt it was expected.[148]  As outlined above, Mr O’Connor received further advice from Waller Legal after the settlement conference.  It did not refer to an Ellis-type defence.  His evidence was that he was ‘eventually worn down to take the $135,000’.[149]  He did so after receiving advice from a second solicitor at another firm.[150]

   [145]T 53.14.

   [146]T 53.20-54.13.

   [147]T 45.18-21.

   [148]T 44.27–45.5.

   [149]T 63.27-28.

   [150]T 64.15-28.

8. Mr O’Connor entered into the prior deed many months after the settlement conference and after having received legal advice from Waller Legal and a solicitor at another firm that he should do so.  I should add that there is no evidence that Mr O’Connor was placed under undue pressure by his legal representatives. 

9. This factor does not favour setting aside the prior deed.

Bargaining power

1. Mr O’Connor said that he was scared and intimidated by the Christian Brothers at the settlement conference.  Mr O’Connor described how the fear he felt as a St Patrick’s College student returned when dealing with them.[151]  I accept Mr O’Connor’s evidence as to his state of mind about the Christian Brothers.  However, I do not consider it had a material impact on entering into the prior deed.  Mr O’Connor was legally represented during the settlement conference.  There is no evidence to suggest that the representatives of the Christian Brothers directly interacted with him on the day or engaged in conduct to scare or intimidate him during the conference.  Mr O’Connor could not recall being in the same room as the Christian Brothers at the settlement conference.  His solicitor’s file note suggests they were in different rooms.  After the joint opening session, it is recorded ‘Back with [Mr O’Connor]’.[152]  He does not allege the Christian Brothers pressured him to settle. 

   [151]T 75.15-30.

   [152]Exhibit ‘S’ to the first Dale affidavit, 407.

2. I accept that Mr O’Connor had less bargaining power when negotiating with the Christian Brothers and entering into the prior deed.  He received legal advice that his case was risky.  The file note of the settlement conference records the writer’s view that issuing proceedings would be risky.[153]  This follows reference to ‘SA’, presumably childhood sexual abuse of Mr O’Connor by his uncle and Wally, and ‘PA’, presumably physical abuse, by his mother and a note ‘work issues – link may be too remote’.[154]  Earlier, the file note of the settlement conference records Mr O’Connor ‘noting how much effect of SA by uncle & Wally will have.’[155]  As discussed above, later legal advice to Mr O’Connor also referred to his risks in issuing proceedings.

   [153]Ibid, 408.

   [154]Ibid, 407-408.

   [155]Ibid, 399.

3. In the circumstances here, the unequal bargaining power between the parties is assessed neutrally; it weighs neither in favour nor against setting aside the prior deed.

Prospects of success and settlement amount

Mr O’Connor’s submissions

1. The settlement sum was grossly inadequate.  Mr O’Connor received just over $100,000 for child sexual and physical abuse, and a lifetime of suffering, economic loss and treatment expenses.  But for the legal barriers to his claim, Mr O’Connor would have been entitled to damages commensurate with his injuries and loss, with these damages well exceeding the settlement sum.  This is illustrated by Mr O’Connor’s particulars of special damages filed in the current proceeding, which estimate his loss in the range of $2.3 million and $4.6 million, and by comparison to comparative rulings.

2. Mr O’Connor did not pursue the potential damages available to him and felt compelled to accept the manifestly inadequate settlement sum as he rightly believed that the Ellis defence was insurmountable.

3. Mr O’Connor has since been diagnosed with post-traumatic stress disorder which was not previously compensated.

4. There was no evidence that ‘there was any significant discount applied’ to the settlement sum due to any liability issues.

Defendant’s submissions

1. The settlement sum was struck in circumstances where Mr O’Connor had suffered, with respect, moderate abuse and where the evidence showed that other causative factors contributed to Mr O’Connor’s injury, including unrelated sexual abuse, his early family life, workplace stressors, relationship stressors and financial stressors.  

2. Further, the settlement sum was struck after experienced Counsel had been briefed.  The contemporaneous file note of the settlement conference recorded that Counsel advised Mr O’Connor that she ‘hope[d] for 100k.’

3. In the Waller Legal 20 July 2017 letter, Waller Legal advised Mr O’Connor that the settlement sum was a ‘reasonable outcome’.  There is no evidence to suggest that the settlement sum was outside the range of outcomes.

Analysis

1. For the purpose of this ruling, I make the following findings.

2. Mr O’Connor had a reasonable prospect of success when he entered into the prior deed.  He had been sexually abused by Dowlan, who had been criminally convicted.  The Christian Brothers operated St Patrick’s College in the person of the Province Leader, who delegated authority to the Principal.  Mr O’Connor was sexually abused while he was a student at St Patrick’s College.  The Christian Brothers owed a duty of care to him.

3. Mr O’Connor’s case had some risk in establishing breach of duty.  Other boys were sexually abused by Dowlan at the same time.  There is a question as to whether Naughtin and Nangle had knowledge of the abuse by Dowlan (and indeed other Brothers) prior to the abuse of Mr O’Connor.

4. Whilst Mr O’Connor had a good prospect of establishing pain and suffering consequent to the abuse, there was a real risk of this being significantly discounted due to the other sexual and physical abuse that occurred before the abuse by Dowlan.  There was a difference in the medical opinion obtained before the settlement conference as to the extent the abuse had caused him to suffer major depressive disorder (and whether this was in remission), whether it had caused him substance abuse disorder, and its impact on his ability to earn income.[156]  Nevertheless, even accounting for this risk, the settlement sum, which provided for primarily pain and suffering damages and an allowance for economic loss,[157] was a modest sum at the time.[158]  

   [156]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 109-112, 133-137.

   [157]See: exhibit ‘S’ to the first Dale affidavit, 404, 409.

   [158]See, e.g.: SB v New South Wales (2004) 13 VR 527; GGG v YYY [2011] VSC 429; Erlich v Leifer & Anor [2015] VSC 499; Hand v Morris & Anor [2017] VSC 437.

5. The settlement sum is heavily discounted in comparison to the damages that he might be awarded today.  I refer to the uncontradicted report of forensic accountant Mark Thompson.  He assesses Mr O’Connor’s past and future economic loss between $2,349,364 and $4,680,788.[159]

   [159]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 166.

6. This factor weighs in favour of setting aside the prior deed.

Mr O’Connor’s mental health; feelings of guilt and shame

Mr O’Connor’s submissions

1. Mr O’Connor was impaired and under pressure during discussions with his legal representatives which resulted in the settlement.

2. Further, Mr O’Connor’s evidence was that he remained intimidated by the defendant at the settlement conference.

Defendant’s submissions

1. Save for Mr O’Connor’s suicide attempt in 2012, there was no evidence that Mr O’Connor was impaired during the prior claim, including no evidence that he was experiencing substance use issues or any symptom aggravation.  In fact, the contemporaneous file note of the settlement conference stated that Mr O’Connor was ‘fine, happy’ and had ‘good rapport’ with Counsel.

Analysis

1. Mr O’Connor said he attempted suicide in April 2012 and lost his marriage, his house and his work.[160]  I accept this evidence.  However, the evidence does not support his submission that he was impaired during the settlement conference or afterwards so as to affect his decision-making.  As to being under pressure, I refer to the analysis above. 

   [160]T 75.6-12.

2. As a matter of completeness, I refer to Mr O’Connor’s solicitor’s file note during the settlement conference which does note that Mr O’Connor seemed happy.  It is at odds with Mr O’Connor’s evidence.  It was not put to Mr O’Connor and I place no weight on it.

3. I assess this factory neutrally.

Economic loss claim

Mr O’Connor’s submissions

1. Mr O’Connor claimed economic loss.  Therefore, there is no basis for the Court to consider a carve-out for this head of damage.

Defendant’s submissions

1. The evidence as to the strength of Mr O’Connor’s economic loss claim was equivocal.  It was unclear to what degree, if any, his education and employment had been impacted by the abuse as opposed to other unrelated factors.

2. There was also disagreement between the medical professionals as to the extent and cause of Mr O’Connor’s underemployment and future employment capacity.  

3. Mr O’Connor’s opening offer of $275,000 at the settlement conference supports the proposition that little value was placed on his claim for a loss of opportunity.

Analysis

1. There is evidence to support Mr O’Connor seeking economic loss although the prior deed does not refer to it.  Waller Legal had written to CBP before the settlement conference outlining the impact of the abuse upon Mr O’Connor’s employment.[161]  The medical reports of Professor Dennerstein and Dr Neill provided before the settlement conference addressed the impact of the abuse on Mr O’Connor’s employment.  The solicitor’s file note refers to ‘loss of earnings or loss of opportunity’ and after the joint session ‘work issues – link may be too remote’.[162]  There is a further solicitor note after an offer that ‘they’ve allowed for loss of opportunity’ and then after the settlement sum was accepted, ‘I’ll pre-fill Centrelink form to say no loss of earnings?  EZ will need to look into.’[163]

   [161]Exhibit ‘ADC-1’ to the first Di Carluccio affidavit, 51-54.

   [162]Exhibit ‘S’ to the first Dale affidavit, 397; 408.

   [163]Ibid, 409-410.

2. I find that Mr O’Connor made an economic loss claim.

Conclusion

1. The legal barriers did not materially impact upon Mr O’Connor entering into the prior deed.  Synthesising this, and the other factors above, I find it is not just and reasonable to set aside the prior deed.

2. Mr O’Connor’s application to set aside the prior deed will be dismissed.