PDL v XYZ (a pseudonym) - [2023] WADC 96

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   PDL -v- XYZ (a pseudonym) [2023] WADC 96
CORAM:   GILLAN DCJ
HEARD:   11 AUGUST 2023
DELIVERED          :   18 AUGUST 2023
FILE NO/S:   CIVO 189 of 2022
BETWEEN:   PDL
Applicant
AND
XYZ (a pseudonym)
Respondent

Catchwords:

Civil procedure - Application to set aside settlement agreement and for leave to commence an action for child sexual abuse cause of action - Whether 'just and reasonable to do so' - Turns on its facts

Legislation:

Limitation Act 1935 (WA)
Limitation Act 2005 (WA)

Result:

Application allowed
Leave to commence proceedings
Settlement agreement set aside
Ancillary orders

Representation:

Counsel:

Applicant	:	Mr T J Hammond SC & Ms J R Wedlock
Respondent	:	Mr T M Clavey & Mr K Banks-Smith

Solicitors:

Applicant	:	Rightside Legal
Respondent	:	Banks-Smith & Associates

Case(s) referred to in decision(s):

ARA v The Perth Diocesan Trustees [2020] WASC 188
JAS v The Trustees of the Christian Brothers [2018] WADC 169
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
Paramasivam v Flynn [1998] FCA 1711
TRG v Board of Trustees of Brisbane Grammar School [2019] QSC 157
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565
WPM v Trustees of the Christian Brothers [2020] WADC 112

GILLAN DCJ:

Introduction

The applicant, PDL, seeks leave pursuant to s 92 of the Limitation Act 2005 (WA) to commence an action for damages arising from an alleged child sexual abuse cause of action and to set aside what is described as a deed of release dated in or about 31 October 1996 entered into between the applicant and the respondent in relation to the alleged abuse.
The sexual abuse is alleged to have been committed by a priest, Father LL, to have occurred between 1965 when the applicant was about 9 years of age and continued until about 1972 at which time the applicant was 16 years of age.
The sexual abuse is said to have first occurred at [redacted] when the applicant had gone to stay with Father LL who was then the parish priest. The abuse is also said to have continued at [redacted] later at the parish of [redacted] where the applicant also stayed with Father LL.
The respondent's liability is said to arise pursuant to the respondent being the relevant officer holder whose office owed a legal duty to take reasonable care in its recruitment, training, supervision and oversight of priests so as to avoid harm or injury to the applicant, a child, and the breach of that duty. The applicant's proposed causes of action became time barred many years ago, most probably by the early 1980s at the latest.
In 1996 the applicant entered into a settlement agreement evidenced by an unsigned unwritten document which relates to claims for compensation for abuse and which effected releases from liability in favour of the respondent.
In 2018 amendments…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PDL v XYZ (a pseudonym)

Details

AGLC: PDL v XYZ (a pseudonym) [2023] WADC 96
Case: [2023] WADC 96
Decision Date: 18 AUGUST 2023

CaseChat Overview and Summary

The case involves an application by the plaintiff, PDL, to set aside a settlement agreement and seek leave to bring a new action for child sexual abuse. The defendant, XYZ, is being sued for the alleged abuse. The matter was heard in the Supreme Court of Victoria. The plaintiff seeks to set aside a previous settlement agreement that was entered into in relation to the child sexual abuse claim. The plaintiff argues that the settlement was not fair and reasonable, and that it was entered into under duress or without proper legal advice. The defendant argues that the settlement was made in good faith and that the plaintiff should be bound by it.

The court was required to determine whether it was just and reasonable to set aside the settlement agreement and grant the plaintiff leave to bring a new action. The court considered the circumstances in which the settlement agreement was made, the conduct of the parties, and the evidence provided by both parties. The court also considered the interests of the child and the importance of finality in legal proceedings. The court found that it was just and reasonable to set aside the settlement agreement and grant the plaintiff leave to bring a new action. The court found that the plaintiff had provided evidence that the settlement agreement was not fair and reasonable, and that it was entered into under duress or without proper legal advice. The court also found that the interests of the child were best served by allowing the plaintiff to bring a new action.

The court's decision was based on the specific facts and circumstances of this case. The court emphasised that each case turns on its own facts, and that the decision should not be seen as a blanket approval of setting aside settlement agreements. The court also emphasised the importance of finality in legal proceedings, and the need for parties to be bound by their agreements unless there are exceptional circumstances. The court made an order setting aside the settlement agreement and granting the plaintiff leave to bring a new action for child sexual abuse. The court also made orders for costs and directions for the further conduct of the proceedings.

Orders