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 were made to the Limitation Act 2005 and the Civil Liability Act 2002 (WA) by the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA). Those amendments have enabled claims for damages for historical sexual abuse to proceed. The amendments came into effect on 1 July 2018 and included provisions removing time limitations and enabling the setting aside of settlement agreements in relation to claims for sexual abuse.
Relevantly, s 92 of the Limitation Act 2005 states that a court may, if satisfied it is just and reasonable to do so, set aside a settlement agreement in relation to a previously settled cause of action.
The respondent opposes the grant of leave to commence an action and the setting aside of the 1996 settlement agreement.
The issue for my determination is whether it is 'just and reasonable' to give leave to commence the proposed action and set aside the 1996 deed.

Background

The hearing of the application proceeded on affidavit. The applicant affirmed three affidavits dated 1 November 2022, 17 July 2023 and 4 August 2023.
The following facts are attested to.
The applicant is now 67 years of age. He was born in Perth where he was the eldest of six children. He was baptised and raised in a devoutly Roman Catholic family.
Father LL, was a Catholic priest and his paternal uncle. The applicant had a number of other male uncles who were not priests. Father LL was held in very high regard by his parents, the extended family and the Catholic community. From time to time the applicant's parents placed him into the care of Father LL.
In his affidavit of 1 November 2022 the applicant outlines the nature of the abuse that he suffered, when it started, when it finished and where it occurred. I will not repeat it here. The abuse outlined occurred while he was staying at the presbyteries located at [redacted] and in [redacted]. The applicant estimates that he was abused hundreds of times over the years.
In June 1993 the applicant outlined that abuse in a statement prepared with the assistance of Mr Gerard Overman, an experienced lawyer and family friend. The statement was provided to the respondent by Mr Overman, in or about June 1993.[1]
[1] Affidavit of Kevin Banks‑Smith affirmed 7 August 2023.
In 1994 the applicant reported the sexual abuse by Father LL to the WA Police.
Father LL was charged with 47 counts of unlawful and indecent dealing, 25 of which related to the applicant. It is common ground that Father LL pleaded guilty to 46 of those counts and was sentenced to a term of imprisonment.
Father LL died aged 85 on [redacted].
In his affidavit the applicant outlined the effect on him of the abuse as follows:
23As a result of the sexual abuse I experienced confusion, fearfulness, nightmares, worries about my homosexuality, guilt, shame, loneliness and despair. I made a decision never to have children.
24The abuse severely damaged my trust in everyone and relationship with my parents, particularly my father. I resorted to use of alcohol, marijuana and other substances for most of my adult life to decouple feelings of guilt, shame, and fear from sex.
25I've been diagnosed with (i) Unspecified Sexual Dysfunction - sexual aversion (ii) Substance Use Disorder (iii) Chronic Post‑Traumatic Stress Disorder and (iv) Major Depressive Disorder.
…
28My career history has been disrupted due to the sexual abuse and I have been employed in a variety of roles. I have also experienced lengthy periods of unemployment. I have had some roles that I have been very proud of but the disruption to my mental health means that I have never fulfilled my full potential.
The applicant annexed to this affidavit a copy of a report of a psychiatrist, Dr Josephine Saunders, dated 4 October 2021 and also one of a psychiatrist, Dr David Smith, dated 7 December 1994. Those reports are relied on to provide substantiation of the nature and extent of the applicant's psychological injury and its impact on his working life.

The Agreement and circumstances of its execution

When, in about 1993, the applicant was assisted to put together the statement previously referred to, he understood that Mr Overman had sought legal advice from Mr Overman's colleague about the possibility of a civil legal claim for compensation. The applicant was told that any claim was statute barred. The applicant understood from those discussions that he was out of time to bring his civil claim in Western Australia, that time had expired by the time he was 24 years of age at the latest and that the statute of limitations made it impossible for him to sue the church in the 1990s.
The applicant was also aware that it was impossible to extend the limitation period in Western Australia.
Consistently with this understanding, on 16 December 1993, Mr Overman wrote to the respondent to negotiate for the payment of therapy expenses already incurred and future expenses. Importantly, that letter refers to the applicant's emotional distress arising from the abuse and also the discussion of these matters.
On 29 November 1995 the applicant wrote to the respondent asking for ongoing payment of therapy expenses and also referred his understanding that a panel of experts engaged by the Church was working on a compensation payment. The applicant asked for the panel to take into account that the applicant considered a fair and reasonable amount to be $1.25 million.
By August 1996 the applicant was legally represented by Mr Michael Hollingdale. Mr Hollingdale sent a letter of advice to the applicant (and 3 other related claimants) dated 29 August 1996. The stated purpose of that advice was to enable the applicant to make an informed decision about the various options he might have available to him when considering any settlement proposals which may be put to him on behalf of the respondent at a mediation then forthcoming.
Briefly, the gravamen of the advice was that:
1.Any cause of action against Father LL would lie in assault and battery or for negligence. Even allowing for an extension of the time to bring a claim due to the applicant being a child at the time of the sexual abuse, any claim against Father LL and the respondent would be statute barred. An argument that the limitation period would only run from the time of the discovery that a psychiatric injury had been suffered[2] was not likely to succeed;
2.The ability to seek an extension of the limitation period did not exist so the expiration of a limitation period would constitute 'a complete defence';
3.There was, based on a 1992 Canadian decision,[3] the possibility of a novel claim for breach of fiduciary duty arising for which there was no statutory limitation period. There were clearly considerable obstacles to such a claim such as there being no Australian precedent for that cause of action.
[2] By implication diagnosis of psychiatric injury was some considerable period of time after the abuse was suffered.
[3] Referred to in the letter as KM v HM but properly cited as M(K) v M(H) (1992) 96 DLR (4^th) 289.
The summary of advice given was:
In conclusion, your prospects of obtaining compensation from LL or the church for the wrongs of LL through legal proceedings in the present circumstances are poor. Unless you have considerable financial resources to do so we would not advise you to embark upon such a risky and expensive course. The decision is one for you to make and it may be deferred until after the outcome of the mediation. We can revisit the subject with you if the proposals put to you in mediation are unsatisfactory.
Prior to mediation each of the parties prepared position statements which were sent to the proposed mediator. [Redacted]:
[Redacted].
[Redacted]:
[Redacted]
The applicant did not recall what, if anything, he was told by Mr Hollingdale before the mediation about what quantum of compensation was appropriate to his circumstances.
The applicant's uncontested evidence is that at the mediation conference either the respondent or the lawyer present at the mediation acting for the respondent said that the maximum amount of compensation available was $50,000 for each for the claimants present. The mediation was held in the respondent's lawyer's office and those present were the applicant and other claimants each represented by Mr Hollingdale, the respondent and the respondent's lawyer and a mediator, Ms Marion Dixon.
The applicant describes the mediation as a traumatic process for him and said that the mediation did not seem to last very long.
In the applicant's recollection no further offers were exchanged. The applicant said that he did not recall receiving advice about the quantum that was offered at the mediation, but he knew he had no options. If the applicant didn't accept the $50,000 he would get nothing. He knew he did not have any legal rights to pursue the respondent in court. Accordingly, he accepted the $50,000 that was offered.
In respect to the applicant's understanding of his legal position and his state of mind leading up to and at the time of the mediation conference the applicant says as follows.
In his affidavit dated 1 November 2022: that the applicant knew when he received the payments that any legal rights that he had to sue for compensation had expired many years before. He had little option other than to take what was offered.
In his affidavit dated 17 July 2023: the applicant was advised by Mr Hollingdale that the only realistic option was to attempt a form of mediation. The applicant knew what he was getting into and knew there would be a capped amount offered and that he had no option to take what would be offered. He said that he certainly knew it was not a level playing field in that he could not go off to court if the outcome of the mediation seemed unsatisfactory or unfair. The applicant said further that there was no attempt at the mediation to discuss an amount that might properly compensate him for what he had suffered. The applicant therefore took the $50,000 that was offered at the mediation and signed the agreement.
In his final affidavit of 4 August 2023: the applicant said that well prior to mediation, in 1993, he had had a series of meetings with the respondent about the sexual abuse that he had suffered at the hands of Father LL and about his concern that Father LL was then still saying mass and living close to a primary school. At those meetings he did not recall discussing money or compensation with the respondent.
The applicant does not actually recall signing any written agreement and no party was able to produce a signed document but a document headed Agreement expressed to be between the applicant, other 3 related claimants and the respondent and dated 31 October 1996 which embodies terms including for payment of sums expressed to be ex gratia, for church related actions on the part of the respondent and for a release has been produced and it was common ground that a settlement reached was in those terms.
The unsigned Agreement provides:
RECITALS
AThe parties have attended mediation pursuant to an agreement dated 31 October 1996.
B[XYZ], having considered the needs of the [PDL [redacted]] over and above compensation received under the Criminal Injuries Compensation Act, has resolved to make ex gratia payments.
CThe ex gratia payments are made without admission of any legal liability on the part of [XYZ] in his personal capacity or as [his representative capacity].
…
OPERATIVE PART
1[XYZ] agrees to:
(a)pay $50,000.00 to each of PDL, [redacted] and [redacted] within fourteen (14) days.
(b)[redacted].
(c)pay $8,000.00 to Hollingdales, Solicitors within fourteen (14) days.
(d)pay $2,000.00 to Marion Dixon within fourteen (14) days.
(e)reimburse [PDL] the cost of his return airfare from the United States.
…
3[XYZ] agrees to notify the Professional Standards Committee of the names of people believed or known to have been sexually abused by Father [LL] as identified in the list produced by Father [LL] in or about 1993.
…
11In consideration of the payment of the ex gratia payments by [XYZ] the [PDL [redacted]] release and discharge [XYZ] in his personal capacity and as [his representative capacity] from any liability whatsoever in respect of the sexual abuse committed upon them by Father [LL] and warrant that they will make no further claim for damages or compensation arising out of the matters in dispute (as identified in the Mediation Agreement dated 31 October 1996) against [XYZ], his successor or the Roman Catholic Church.
12This agreement may be pleaded as a bar by any of the parties and by any person who is or becomes [redacted] in bar to any action, claim or demand now and hereafter commenced or made by the [PDL [redacted]] ([redacted]) arising out of or connected with the matters the subject of the Dispute (as identified in the Mediation Agreement dated 31 October 1996).
The Mediation Agreement dated 31 October 1996 entered into between the applicant and the other claimants, the respondent and the mediator provided, relevantly,
SCHEDULE 1: DESCRIPTION OF DISPUTE
Father [LL] has been convicted and jailed in respect of offences involving sexual assault. [Description of PDL [redacted]] have made a claim against [XYZ, and his office] in respect of Father [LL]'s assaults upon them. The dispute concerns whether [XYZ, and his office] has any legal or other obligation towards [PDL and the other 3 other related claimants] in respect to Father [LL]'s conduct?
The following things need to be taken into account in relation to the applicant's legal position in October 1996. First, any proposed claim by him was statute barred. The limitations provided for in the Limitation Act 1935 (WA) (the 1935 Act) have been described as provided a defence of a procedural nature, however, if the expiration of the limitation period was relied on it was a considerable factor in any assessment of a claim that the applicant might bring. Coupled with this that there was no capacity for an extension of the limitation period.
Second, as is demonstrated in cases decided shortly after, there was a real difficulty in establishing an appropriate defendant in circumstances where the first defendant in proposed proceedings is an unincorporated association and where there was no relevant office holder with perpetual succession. The decision in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565, made this abundantly clear.
By 1996 issues related to whether the respondent could be held responsible for the actions of priests had been aired in the [redacted] and an application for special leave to the High Court in respect to that decision had been refused.
Potential legal difficulties for the applicant in sheeting home to the respondent liability for the actions of Father LL were averted to in the letter of 29 August 1996 to the applicant by Mr Hollingdale when he said:
The liability of the church for LL's wrongful acts whether it be in negligence or as LL's principal or employer is a separate issue. In light of the conclusions we have reached above we do not consider it necessary to address this issue for the present.
Senior Counsel for the applicant advised from the bar table that enquiries had failed to reveal any personal injuries claims for child sexual abuse being resolved in the courts in Western Australia at or about the applicable period of time.
It seems more likely than not, bearing in mind the Statement of Issues for Discussion prepared on behalf of the respondent referred to [29] above, the existence of the panel of experts contemplating the amount of any ex gratia compensation payments and the recollection of the applicant as to what happened at the private mediation, that as at the time of mediation in October 1996 the respondent would have availed itself of any available defences including the limitation defence.
As a consequence of these events, the applicant has to date received in respect of the claimed injury, a total of $78,000 plus legal costs of $3,250 which is broken down as:
(a)the sum of $18,000 through Criminal Injuries Compensation received in about 1994;
(b)an ex gratia payment of $10,000 from [redacted]. This payment is the subject of little evidence but it does not seem to have been in contention at the hearing; and
(c)the sum of $50,000 in compensation from [redacted] together with the sum of $3,250 for legal fees and those sums are the subject of the mediation and the settlement agreement.

The legislation and the legal principles

Prior to the 2018 amendments to the 1935 Act applied to the applicant's proposed causes of action. A plaintiff was required to claim damages for personal injury within six years of the date of accrual of the cause of action subject to some extensions. A permissible extension was to allow for incapacity by virtue of the plaintiff being under the age of majority. In such a case the limitation period did not commence to run until the person attained the age of majority. There was no provision for the extension of time. Accordingly, as I have said above, the applicant's causes of action became statute barred by the early 1980s. If the respondent pleaded the limitation defence the applicant would, absent the 2018 amendments, be left with no remedy.

The Limitation Act 2005 while allowing for extensions of time has no application to causes of action which accrued prior to its commencement date of 15 November 2005.
The effect of the 2018 amendments to the Limitation Act2005 were to the effect that s 6A removed any limitation period for child abuse actions.
6A.Special provisions for child sexual abuse actions: no limitation period
(1)In this section -
child means a person under 18 years of age;
child sexual abuse, of a person, means an act or omission in relation to the person, when the person is a child, that is sexual abuse;
child sexual abuse action means an action on a child sexual abuse cause of action;
child sexual abuse cause of action means a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person.
(2)Despite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action.
(3)The following provisions do not apply in respect of a child sexual abuse action -
(a)the Crown Suits Act 1947 section 6 (as applying under the Limitation Legislation Amendment and Repeal Act 2005 section 8);
(b)the Limitation Act 1935 section 47A (as applying under the Limitation Legislation Amendment and Repeal Act 2005 section 4);
(c)section 5 of this Act.
(4)This section applies regardless of whether the action is brought in tort (including trespass), in contract, under statute or otherwise.
(5)This section does not limit -
(a)any inherent, implied or statutory jurisdiction of a court; or
(b)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
Note for this subsection:
For example, this section is not intended to limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
(6)A cause of action referred to in the definition of child sexual abuse cause of action does not include a cause of action, action on which could not be maintained but for the Fatal Accidents Act 1959 or the Law Reform (Miscellaneous Provisions) Act 1941.
(7)The Minister must carry out a review of the operation and effectiveness of this section and Part 7 as soon as is practicable after the 3rd anniversary of the day on which the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 section 10 comes into operation.
(8)The Minister must prepare a report based on the review and, as soon as is practicable after the report is prepared, cause it to be laid before each House of Parliament
By subsection 5 the court retains the power of its inherent, implied or statutory jurisdiction to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on a defendant to the point that a fair trial is not possible.
Section 92 of the Limitation Act 2005 relevantly deals with previously settled causes of action and it reads:
92.Previously settled causes of action
(1)This section applies in relation to a proposed action on a previously settled cause of action and to the agreement effecting the settlement (the settlement agreement).
(2)Application may be made to a court that would have jurisdiction to deal with the action, but for the settlement agreement, for leave to commence the action.
(3)The court may, if satisfied that it is just and reasonable to do so -
(a)grant leave to commence the action, subject to conditions; and
(b)to the extent necessary for that, set aside the settlement agreement and any judgment giving effect to the settlement.
(4)If an action on the previously settled cause of action is commenced, the settlement agreement and each agreement relating to the settlement, other than a contract of insurance, is, despite any written or other law, void to the extent to which it relates to the child sexual abuse the subject of the cause of action.
(5)A party to an agreement that is wholly or partly void under subsection (4) cannot seek to recover an amount paid by or for the party under the agreement on the basis that the agreement is void to that extent.
(6)The court dealing with the action may, if satisfied that it is just and reasonable to do so, take into account any amount paid under an agreement that is wholly or partly void under this section, to the extent to which the amount relates to the child sexual abuse the subject of the cause of action.
(7)For the purposes of subsection (6), amounts paid under an agreement are taken to relate to the child sexual abuse the subject of the cause of action to the extent of 50% if the agreement -
(a)does not relate solely to that child sexual abuse; and
(b)does not expressly deal with the extent to which the agreement and amounts paid under it relate to that child sexual abuse.
The parties are agreed that the only issue for determination by me is whether it would be just and reasonable to grant leave and to set aside what is described in the application as a Deed of Release dated in or around 31 October 1996.
All other matters required to be established by s 92 are conceded by the respondent.
The Limitation Act 2005 does not define the expression 'just and reasonable' nor does it identify criteria by which the discretion should be exercised.
In WPM v Trustees of the Christian Brothers [2020] WADC 112, his Honour Judge Stavrianou reviewed the legislation and comprehensively dealt with its purposes, the extrinsic materials which were applicable to a determination of what the term meant, the remedial and beneficial nature of the legislation, the prior authorities in particular that of JAS v The Trustees of the Christian Brothers [2018] WADC 169, other authorities in the Supreme Court such as ARA v The Perth Diocesan Trustees [2020] WASC 188 and decisions in the court in Queensland with respect to the appropriate approach to these issues. I am indebted to and adopt his Honour's approach.
The appropriate approach can be summarised as, see WPM v Trustees of the Christian Brothers [29]:
1.As a general rule there is no statutory limitation period for such a claim.
2.At the date the plaintiff entered into the settlement agreement his claim under existing law was statute barred. This meant that his bargaining position was severely curtailed and he was left with no real choice but to accept whatever amount was offered by the intended defendant without it being necessarily a reflection of his proper entitlement if he was successful in an action against the intended defendant.
3.The extent of the plaintiff's entitlement if successful on such a cause of action has never been decided on its merits.
4.If leave is given the court dealing with the action may, if it is satisfied that is just and reasonable to do so, take into account any amount paid under a settlement agreement to the extent that it relates to the child sexual abuse the subject of the cause of action. Accordingly, the defendant is not likely to be financially disadvantaged by having made the payment under the settlement agreement.
5.Granting leave to commence an action is consistent with the broad intention of the amending Act to remove legal barriers to claimants commencing an action and having their claims decided on their merits
6.The defendant did not oppose the application.
Of course, in this case the respondent does oppose the application.
Before leaving the legal principles, the respondent submitted that the approach followed by the court in TRG v Board of Trustees of Brisbane Grammar School [2019] QSC 157 and the Court of Appeal decision upholding that finding should be followed. Those decisions are distinguishable because here there is evidence that the difficulties with the 1935 Act, along with difficulties associated with the Ellis point, were taken into account by the application when agreeing to do the final settlement figure and evidence implying that it was factor in the church settling on an ex gratia figure by way of settlement.

Outcome

The court's discretionary power to set aside settlement agreements created by s 92 is broad. The power is to be exercised if the court is satisfied that it is just and reasonable to do so in all of the circumstances.
The applicant bears the onus of establishing that it is just and reasonable in all the circumstances.
The authorities make it clear that I need to consider the parties' circumstances at the time that the settlement agreement was entered into for two reasons. First of all that the amendments now provide that there is no statutory limitation period so the application does not fall to be considered in the light of all of the rationales for statutory time limitations. In addition, even if leave is granted to commence an action and liability is established, the court when awarding damages can take into account and deduct from the damages any amounts that have been paid pursuant to the settlement agreement, so there is no disadvantage to a defendant by having made a payment under a settlement agreement: see JAS v The Trustees of the Christian Brothers [19] ‑ [21] and WPM [58].
The applicant says that he knew he had no legal rights against the church by the time of the settlement in 1996 and that was a real factor in his decision.
There is also evidence that these matters caused the applicant great difficulty and that discussing these matters would cause him considerable psychological difficulty: see the affidavit of PDL, 4 August 2023 at Annexure PDL-01, page 7, where Mr Overman says 'unfortunately [PDL] spun out in a period of emotional distress for a few days and found it impossible to focus on the task'; the applicant's victim impact statement dated 7 December 1994, the affidavit of PDL, 1 November 2022, Annexure PDL-3 and the report of David Smith, consultant psychiatrist, 7 December 1994 the affidavit of PDL, 1 November 2022, Annexure PDL-5.
The applicant's proposed action cannot be described as being without merit. Father LL was convicted for the sexual abuse of the applicant and the documents suggest Father LL admitted the abuse to the respondent along with providing a list of children he abused, suggested to be some 20 in number.
That sexual abuse took place, on the applicant's case, in the presbyteries in both [redacted] and [redacted].
The applicant's evidence is that he suffered horrendous and sustained abuse by Father LL on hundreds of occasions between when he was 9 and when he was 16. In its oral submissions, counsel for the respondent said that the preferred position of the respondent is that the actions of Father LL were undertaken in his capacity as the applicant's family member rather than as a priest.
The applicant relies on the following evidence which links the abuse of the applicant to Father LL's functions as a priest:
1.The abuse happened in the presbyteries.
2.The applicant has been an altar boy from Grade 3 and later head altar boy until he resigned that position at 16. The abuse is said to have occurred during periods of time when the applicant was acting as altar boy while staying with Father LL.
3.It was because Father LL was a priest that he was trusted by the applicant's parents as a suitable carer, role model and mentor for the applicant and PDL did not ever stay with any other male uncle.
4.On the first occasion when there was any sexual conduct he had been sleeping in the sleepout at the presbytery.
5.Father LL sexually abused him each night and day when he was staying at the presbyteries in [redacted] and [redacted].
6.[Redacted].
7.The applicant who himself was deeply religious sought confirmation from Father LL with respect to whether what was happening was alright.
8.The applicant served as an altar boy at each country church that he attended with Father LL and in particular on each occasion that he went to [redacted].
9.The applicant also occasionally served as an altar boy when Father LL said mass in [redacted].
10.Days spent with Father LL in [redacted] were structured around his priestly duties and sexual abuse. That sexual abuse would include before and after mass in [redacted] and before or after mass in [redacted]. The only reason he was allowed to stay overnight with Father LL was because he was a priest and was accorded great respect within the family and because the applicant would help Father LL with his ministry which was considered a privilege and important.
I am not called on to decide the strength of the argument raised by the respondent but on the basis of the material provided for the purpose of this application I am not persuaded that the applicant's case on liability is not well arguable.
Further there is evidence to suggest that the quantum of the proposed claim is significant. The psychiatric evidence produced by and attached to the applicant's affidavit affirmed 1 November 2022 is prima facie confirmatory evidence that the applicant had suffered significant and ongoing psychological difficulties throughout his life.
Further, the report of Dr Smith and also the report of Dr Sunderdin both refer to the effect on the applicant's earning capacity.
I am of course unable to make any precise determination as to the quantum of the claim in the event that the applicant is successful as to liability should the leave sought be granted. Each case does turn on its own circumstances but it is of note that recent assessments in matters of historical sexual abuse such as in Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27, there was an award of $400,000 by way of general damages along with assessed loss of earning capacity approached on the basis of a capacity to earn at least average weekly earnings.
The applicant's evidence as to loss of earning capacity is that his working life was interrupted and he had periods of time off work. If he succeeds in establishing a causal link between the above and the interruptions in his working life then his claim could be a considerable one and will most likely well exceed the ex gratia payments to him.
It is clear that at the mediation conference the applicant was represented by Mr Hollingdale. Prior to the conference the applicant had indicated to the archbishop, the respondent, that he saw his claim as being $1.25 million and yet he settled for $50,000.
The respondent also relies on the applicant having been aware that there may be a novel claim in breach of fiduciary duty. This was said to be a relevant consideration in assessing the reasonableness of the applicant accepting $50,000 by way of settlement notwithstanding that he could have pursued that claim.
That submission is unpersuasive given Mr Hollingdale's advice that that novel claim not be pursued as being too risky and expensive. In addition, it is clear from a decision only two years later in Paramasivam v Flynn [1998] FCA 1711 that the novel claim had no legs.
It matters not that the applicant had been told there may be a novel claim when he was also told that he should not pursue it and we can now be satisfied that the novel claim was no claim.
In this case the application is opposed. The respondent's submission is that the 1996 settlement agreement was the product of a fair and even process with all parties having access to suitable and competent advisors and it reflects the strengths and weaknesses of the parties' respective positions without any reliance on the limitation period.
Accepting that the applicant was represented at the mediation but it is the case that his position was he simply could not issue proceedings which had any reasonable prospect of success in the event that a settlement was not effected. Having Mr Hollingdale at the mediation conference clearly could not overcome the insurmountable legal barriers to the claim which the applicant was acutely aware of and the respondent had been advised to rely on.
The respondent counsel said in oral submissions that I should not accept the applicant's evidence that he knew that he had no options, or that if he did not accept the $50,000 then he would get nothing from the church, or he knew he did not have any legal rights to pursue the church in court. That submission is based on the suggestion that there was no independent objective evidence of the applicant's subjective belief as at the date of the mediation conference.
The difficulty with that submission is threefold. First, the respondent did not seek to cross-examine the applicant about his subjective beliefs as at that date.
Second, the respondent does not point to any evidence to support a contention that the applicant did not hold those subjective beliefs. It points to no document or witness to say that there was some other motivating factor or some other state of knowledge which the applicant had at that time.
Third, all of the objective evidence surrounding the matter as at October 1996 is consistent with what the applicant says was his subjective belief, in particular, the letter of Mr Hollingdale dated 29 August 1996 and the respondent's position for the purposes of mediation which suggests on intention to rely on the limitation defence.
I accept that the applicant was left with no real choice but to accept what was offered at the 1996 mediation.
Further, the nature of the settlement was that it was offered on an ex gratia basis and without any admission of legal liability.
I want to make some brief comment about the settlement agreement sought to be set aside. First, the evidence is unclear as to whether a document in the terms of the Agreement was signed but it seems most likely it was because it is common ground that payment was made in accordance with its terms and the terms would include the releases set out above. Second, the written but unsigned agreement, does not purport to be a deed and on its face even if it had been signed would not meet the formalities of a deed: s 9 of the Property Law Act 1969 (WA).
Accordingly the orders I make should refer to the settlement agreement entered into on or about 31 October 1996.
In all of the circumstances I am satisfied that it is just and reasonable for leave as sought to be granted and for an order to be made setting aside the 1996 agreement. This will enable the applicant to pursue his proposed action in circumstances where the time bar, the identity of the defendant, and the prior settlement agreement are not a barrier to a determination on the merits.

Conclusion

Accordingly I make the following orders:
1.The applicant have leave to commence an action for damages for child sexual abuse by Father LL at the parishes of [redacted] between in or about 1965 and 1972.
2.The settlement agreement entered into on or about 31 October 1996 between the applicant and the respondent be set aside to the extent such agreement would otherwise be a bar to any such cause of action.
3.There be liberty to apply pursuant to s 92(3)(b) of the Limitation Act 2005 in relation to any other settlement agreement found to be in existence.
4.It is a condition of the leave granted in subparagraph 1 of these orders that such leave is not to be a bar to the respondent making an application for any orders in the action pursuant to the reserve powers of the court referred to in s 6A of the Limitation Act 2005.
5.The costs of and incidental to this application be in the cause of the child abuse action to be commenced.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to her Honour Judge Gillan
18 AUGUST 2023