Stevens (a pseudonym) v Trustees of the Christian Brothers

[2025] VSC 512

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2023 02867

BETWEEN:

CAMDEN STEVENS (a pseudonym)	Plaintiff
v
TRUSTEES OF THE CHRISTIAN BROTHERS	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2025
DATE OF RULING:	25 August 2025
CASE MAY BE CITED AS:	Stevens (a pseudonym) v Trustees of the Christian Brothers
MEDIUM NEUTRAL CITATION:	[2025] VSC 512

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LIMITATION OF ACTIONS – Limitation of Actions Act 1958 (Vic), ss 27QD, 27QE – Institutional abuse – Prior settlement deed – Application to set aside prior deed – Whether just and reasonable to set aside prior deed – Whether the Ellis defence impacted plaintiff’s decision to enter into the prior deed – Whether the expiry of the limitation period impacted plaintiff’s decision to enter into prior deed – Whether the plaintiff had an erroneous belief concerning the application of the Ellis defence and limitation period – Whether the Court can consider the plaintiff’s erroneous beliefs in deciding whether it is just and reasonable – Unequal bargaining power – Legal advice – Prospects of success and settlement amount – Interests of the parties – Just and reasonable to set aside the prior deed – DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr G Boas and Mr D J Carolan	Judy Courtin Legal
For the Defendant	Mr S D Hay KC and C T Morshead	Carroll & O’Dea Lawyers

Contents

Introduction

Summary

Evidence

The prior deed

The current pleadings

Background

Mr Stevens engages Waller Legal

Mr Stevens engages Porters Lawyers

Mr Stevens issues proceedings

Informal settlement conference

Settlement

Mr Stevens engages Judy Courtin Legal

Mr Stevens’ evidence

Should adverse inferences be drawn from Mr Stevens’ failure to call witnesses?

Christian Brothers’ submissions

Mr Stevens’ submissions

Analysis - Dr Waller of Waller Legal, Mr Parkinson of PL

Analysis - Ms Zelez of Waller Legal

Analysis - Ms Allison Clark of PL

Analysis - Ms Heather Ross of PL

Analysis - Mr Frank Tuscano of counsel

Statement of agreed facts

Legislation and applicable principles

Is it just and reasonable to set aside the prior deed?

Did the Ellis defence impact Mr Stevens’ decision to enter into the prior deed?

Mr Stevens’ submissions

Christian Brothers’ submissions

Analysis

Did the limitation period impact Mr Stevens’ decision to enter into the prior deed?

Mr Stevens’ submissions

Christian Brothers’ submissions

Analysis

Legal advice given to Mr Stevens

Mr Stevens’ submissions

Christian Brothers’ submissions

Analysis

Did other risk factors impact Mr Stevens’ decision to enter into the prior deed?

Mr Stevens’ submissions

Christian Brothers’ submissions

Analysis

Unequal bargaining power

Mr Stevens’ submissions

Christian Brothers’ submissions

Analysis

Mr Stevens’ health, feelings of guilt and shame

Prospects of success and settlement amount

Mr Stevens’ submissions

Christian Brothers’ submissions

Analysis

Interests of the parties

Mr Stevens’ submissions

Christian Brothers’ submissions

Analysis

Conclusion

HER HONOUR:

Introduction

1. The plaintiff, Camden Stevens, was sexually abused by Christian Brother Robert Best while he was a student at St Leo’s College, Box Hill (‘the College’).  In this proceeding, he claims damages from the defendant, the Trustees of the Christian Brothers. However, Mr Stevens had previously released the Christian Brothers from claims relevant to the abuse in a deed of release dated 12 February 2016 (‘prior deed’). 

2. Mr Stevens applies to set aside the prior deed pursuant to ss 27QD and 27QE of the Limitations of Actions Act 1958 (Vic) (‘LAA’). The Christian Brothers oppose the application.

3. Mr Stevens says two legal barriers were material in his decision to execute the prior deed.  First, the limitation period.  Although the parties executed the prior deed after the relevant limitation period had been abolished, Mr Stevens was unaware of this fact.  Second, the ‘Ellis defence’.  The parties executed the prior deed before legislation removing the availability of the Ellis defence.  The Christian Brothers say they were not relying on the Ellis defence at that time and point to public statements in that regard.  They say the prior deed bars Mr Stevens from claiming damages in the current proceeding.[1]

   [1]Defence filed by the defendant on 27 September 2023, [42(a)–(c)] (‘defence’).

4. One issue for determination is whether the legal barriers impacted upon Mr Stevens entering into the prior deed.  However, this issue is not the only one to consider.[2]  Another issue is to identify the other circumstances to which the Court should have regard in deciding whether it is just and reasonable to set aside the prior deed. 

   [2]DZY (A Pseudonym) v Trustees of Christian Brothers (2025) 99 ALJR 806, [24]–[25], [29]–[30] (Gageler CJ, Gordon, Edelman and Gleeson JJ) (‘DZY’).

5. The ultimate question for determination is whether it is just and reasonable to set aside the prior deed.

Summary

1. For the reasons outlined below, I find that it is just and reasonable to set aside the prior deed.

Evidence

1. Mr Stevens gave oral evidence and was cross-examined. 

2. Affidavits made by the following persons were tendered:

   (a)Mr Stevens, affirmed on 16 October 2024 and 17 January 2025;

   (b)Samuel Mark Sheppard, Mr Stevens’ current solicitor, affirmed on 16 October 2024 and 7 July 2025;

   (c)Charles Harrison, solicitor for the Christian Brothers, dated 6 December 2024[3] and sworn on 29 April 2025; and

   (d)Patrick Monahan, solicitor, who acted for Catholic Church Insurance Ltd from about 1999 until approximately 2019 or 2020, sworn on 10 February 2025.

   [3]This affidavit is irregular.  The jurat of Mr Harrison’s affidavit is undated.

The prior deed

1. Mr Stevens signed the prior deed on 12 February 2016.  He settled his claim for $210,000, inclusive of costs and disbursements and any statutory repayments (‘settlement sum’).  The prior deed relevantly reads as follows:

   Background

   A        The Claimant says that:

   (a) the Claimant attended St Leo’s Christian Brothers College, Box Hill, Melbourne (College)

   (b)       the Claimant received tuition at the College

   (c)       the Claimant met Brother Robert Best a teacher at the College

   (d) whilst he was a pupil at the College he was unlawfully assaulted by Brother Robert Best and other members of the Christian Brothers who were members of the Body Corporate or the Institute and/or employees and/or other persons under the control and management of the Christian Brothers

   (e) as a result of such unlawful assaults, he sustained loss, damage and injuries and may require specialist counselling and therapy

   (Claim).

   B        Brother Robert Best was at all material times a teacher at the College.

   C

   (a) The Claimant has alleged that the Respondents are jointly and severally liable to him in respect of the claim.

   (b) The Respondents recognise their pastoral obligations towards the Claimant but do not admit they are legally liable for the Claim or any loss, damage and injuries.

   (c)However, in order to avoid the cost, expense and inconvenience of litigation or further dispute the Respondents have agreed with the Claimant to settle the Claim on the terms set out in this Release.

   Deed

   1.The Respondents shall pay to the Claimant the sum of $210,000 inclusive of any claim for interest and costs and subject to clause 2 of this document (Settlement Sum). The Settlement Sum will be paid within 28 days of this document being signed and returned to Colin Biggers & Paisley, and Medicare/Centrelink clearances being received by Colin Biggers & Paisley, whichever is the later.

   2. In the event a person or body seeks to recover all or any part of the Settlement Sum from the Respondents for the repayment of social services including but not limited to Medicare, Centrelink and DEEWR services (benefits) or victim’s compensation awarded and paid to the Claimant, the Claimant agrees to indemnify them in respect of the repayment. Further, if the Respondents or their insurers are required to send part of the Settlement Sum to a statutory body in respect of benefits or victim’s compensation or receive a statutory demand for repayment of benefits or victim’s compensation, the Claimant authorises the Respondents to pay the amount sought out of the Settlement Sum and the amount payable under clause 1 of this document will be reduced accordingly. The Claimant authorises the Respondents to provide Medicare Australia with a copy of the Deed of Release if they are required by Medicare Australia to do so.

   3. The Claimant for himself, his executors, administrators, heirs and assigns forever releases and discharges the Respondents, servants and agents both jointly and severally from all actions, suits, claims and demands of every description past present or future relating to or arising from the Claim or any of the matters set out in this release which he now has or which he might have had but for the signing of this Release.

   4. The Respondents may plead this document in bar to any claim or proceeding by the Claimant or any person claiming on his behalf in respect of the Claim or any matter related to the claimant’s presence, attendance, tuition and/or relationship to the College that is known or capable of being known at the time of signing this document.

   5. The Claimant acknowledges that the payment made hereunder by the Respondents is partly made by virtue of the fact that Brother Robert Best is alleged by the Claimant to have caused him loss, damage and injury, the subject of the Claim, was a teacher of the College.

   6. The Claimant acknowledges that by accepting the Settlement Sum and signing this document he is not entitled to make any further approach to the Respondents for financial assistance in respect of the Claim, including assistance with respect to any specialist medical advice or for damages or otherwise relating to the Claim.

   7. The Claimant covenants and agrees that he will take no action against the Respondents or any servant or agent of the Respondents or any of them in respect of the Claim or in respect of the claimant’s presence, attendance, tuition and or relationship to the College.

   8. In the event that any provision of this document, of any part of it, is held to be void or invalid, such provision or part will be severed from the whole and the balance of the Deed or the provision (as the case may be) will remain in full force and effect.

   9. This document sets forth the entire agreement between the parties and supersedes any and all prior agreements or understandings between the parties pertaining to the Claim.

   10. The Claimant hereby acknowledges and confirms that his solicitors have authority to receive payment on his behalf of the Settlement Sum and the solicitors’ receipt shall be a full and sufficient discharge of the obligation to pay.

   11. It is the intention of the parties that this Deed will be binding on all parties and the benefit of this document should extend to all persons and entities referred to throughout the Deed even though they are not parties to the Deed or they have not signed the Deed and the fact they are not a party or have not signed the Deed shall not prejudice or affect their right to rely on the Deed.

   12.This document is governed by the law of Victoria and each of the parties irrevocably submits to the jurisdiction of the Courts of Victoria.

   13.In this document the following definitions apply:

   (a)       Christian Brothers includes.

   (i)        any member of the Congregation of Christian Brothers

   (ii)       the Body Corporate

   (iii)      the institute; and

   (iv)any employee of the Congregation of the Christian Brothers.

   (b) Congregation of Christian Brothers means the pontifical institute founded by Edmund Rice and approved by the Holy See known as the Congregation of Christian Brothers.

   (c)Congregation Leader means the Congregation Leader for the time being (currently Brother Hugh O’Neill) of the Catholic religious institute known as the Congregation of Christian Brothers.

   (d)Province Leader means the Province Leader for the time being (currently Brother Peter Bernard Clinch) of the Province

   (e) Province means the Oceania Province of the Congregation of Christian Brothers, an unincorporated association, or any successor Province as may be determined from time to time by the Congregation Leader.

   (f)       Body Corporate means any or all of the following:

   (i) Trustees of the Christian Brothers, a body corporate under the Roman Catholic Church Communities’ Land Act 1942 (NSW) ABN 64 066 939 786 and its administrators, successors, assigns, servants, agents, employees or contractors

   (ii) past and present members of the Province Leadership Teams of the Province

   (iii) past and present members of the Congregation of Christian Brothers, and

   (iv)their executors, administrator, successors, assigns, servants, agents, employees or contractors.

   (g)       Institute means and includes:

   (i)        the Province Leader

   (ii) past and present members of the Province Leadership Teams of the Province

   (iii) Edmund Rice Education Australia (an unincorporated association)

   (iv)each and every past, present and future member of the Congregation of Christian Brothers

   (v) their executors, administrators, successors, assigns, agents, employees or contractors, and

   (vi)each and every past and present member of the former Provinces of the Oceania Province of the Congregation of Christian Brothers and any associated legal entity.

   Signing Page

   Signed sealed and delivered by each party as a deed

   [Signature of Camden Stevens]

   [Signatures of Terry Burke and Carmela Leonard as Attorneys for the Body Corporate Trustees of the Christian Brothers (ABN 64 066 939 786)]

   [Signature of Brian Joseph Brandon as Attorney for Peter Bernard Clinch on behalf of the Christian Brothers and in his capacity as Province Leader][4]

   [4]Exhibit ‘SMS’ to the affidavit of Samuel Mark Sheppard affirmed on 16 October 2024, 238–46 (emphasis and strikethroughs in original) (‘first Sheppard affidavit’).

The current pleadings

1. Mr Stevens and his parents were of the Catholic faith.[5]

   [5]Amended statement of claim filed by the plaintiff dated 27 July 2023, [2] (‘ASOC’).

2. In 1975, when he was about 10 years old, Best was Mr Stevens’ teacher at the College.  

3. In or around 1975, Best repeatedly sexually abused Mr Stevens.  The Christian Brothers admit the abuse.[6] 

   [6]ASOC [15]; defence [15].

4. The Christian Brothers deny they are vicariously liable for the abuse.[7]  However, they admit their acts or omissions arose from a breach of the duty of care owed to Mr Stevens.[8]  They say this duty was to exercise reasonable care to avoid exposing Mr Stevens to a reasonably foreseeable risk of injury.  They do not admit they owed Mr Stevens a non-delegable duty to exercise reasonable care for his safety, including to act on the knowledge that Best had sexually abused children in the past whilst in a teaching role and, before 1975, to remove him from the College and from any positions in which he could harm children.[9] 

   [7]ASOC [19]; defence [19].

   [8]ASOC [20]; defence [20].

   [9]ASOC [21]; defence [21].

5. The Christian Brothers admit that they knew, or ought to have known, that Best had abused children before 1975, or there was a not insignificant risk of Best abusing the children he taught.[10]  The Christian Brothers admit the risk of harm was foreseeable.[11]  They admit to breaching their duty of care to Mr Stevens, and this breach resulted in the abuse by Best.[12]  They admit it is appropriate for their liability to extend to Mr Stevens’ injury and harm arising from their negligence.[13]

   [10]ASOC [22]; defence [22].

   [11]ASOC [23]; defence [23].

   [12]ASOC [25]; defence [25(a)].

   [13]ASOC [27]; defence [27].

6. However, the Christian Brothers do not admit that their breach of duty caused the injury and harm to Mr Stevens.[14]  The Christian Brothers do not admit causation.  That is, the Christian Brothers do not admit that, but for their negligence, Mr Stevens would not have suffered injury.[15] 

   [14]Defence [25(b)].

   [15]ASOC [26]; defence [26].

7. The Christian Brothers do not admit they should pay Mr Stevens damages, and deny liability for aggravated and exemplary damages.[16]  They do not admit liability for loss and damage to Mr Stevens.[17] 

   [16]ASOC [28]–[34]; defence [28]–[34].

   [17]ASOC [35]; defence [35].

8. The Christian Brothers admit that Best was convicted and imprisoned for the sexual abuse of Mr Stevens, in addition to ten other children, four of whom were also students at the College.[18]

   [18]ASOC [18]; defence [18].

9. The Christian Brothers rely on the prior deed as a complete bar, or as a form of set-off to the proceeding.[19]

   [19]Defence [42]–[43].

Background

1. Mr Stevens was born in 1964 and is currently 58 years old.

2. As outlined above, in 1975, Mr Stevens was repeatedly sexually abused by Best while a 10-year-old student at the College.

3. In 1978, while approximately 14 years of age, Mr Stevens was arrested for ‘breaking and entering’ at Blackburn South High School.[20]

   [20]Affidavit of Camden Stevens affirmed on 16 October 2024, [11] (‘first Stevens affidavit’).

4. Following the sexual abuse by Best, between 1975 and 1980, Mr Stevens says he would ‘wet the bed’.[21]  He says the abuse impacted his educational performance as he struggled with focus and concentration.  This impact continued into his tertiary studies as his Bachelor of Education, a four-year course, took him seven years to complete.[22]

   [21]Ibid [12].

   [22]Ibid [13]–[14].

5. Mr Stevens says he engaged in heavy drinking between the ages of 16 and 47.  Over the same period, he says he engaged in substance abuse, which included ‘amphetamine, methamphetamine, cannabis, cocaine, ecstasy, and heroin use.’[23]  Mr Stevens drank to ‘“shut off” the psychological distress [he] felt.’[24]  He only began to quit alcohol around 2011, ‘because it was the year Best was jailed’.[25]  

   [23]Ibid [16].

   [24]Ibid [15].

   [25]Ibid.

6. Mr Stevens sought professional treatment in respect of the sexual abuse by Best and says he has struggled to maintain romantic and familial relationships, experiences difficulty trusting others, and tries to distance himself from people.[26]  He says he has ‘worked … many jobs’; however, due to stress, pressure and dealing with conflict and authority, he has struggled to maintain them.[27]

   [26]Ibid [18]–[19].

   [27]Ibid [17].

7. On 11 February 2002, Mr Stevens made a statement to New South Wales Police regarding the abuse perpetrated by Best at the College in 1975.[28]  On 11 May 2011, he gave evidence in criminal proceedings against Best.[29]  Best was subsequently convicted, and on 8 August 2011, sentenced to 14 years and nine months imprisonment for acts of sexual abuse committed against Mr Stevens and others.[30]

   [28]Exhibit ‘SMS’ to the first Sheppard affidavit, 1–8.

   [29]Ibid 9–11.

   [30]Ibid 114–27.

Mr Stevens engages Waller Legal

1. On 15 July 2011, Waller Legal wrote to Mr Stevens and confirmed they would act on his behalf concerning his sexual abuse claim against Best (‘Waller Legal 15 Jul 11 letter of advice’).[31]  This letter advised as follows:

   A common law claim would be complex and no doubt rigorously defended by the Christian Brothers.  It would be necessary to show that the Christian Brothers knew or ought to have known that Best was a risk to children and that they failed to take appropriate action.  Further, the common law claim is likely to face technical difficulties of being out of time.  Nonetheless it is a worthwhile line of inquiry and investigation.[32]

   [31]Ibid 128.

   [32]Ibid.

1. On 30 August 2011, Waller Legal wrote to Mr Stevens confirming his instructions to investigate a claim of compensation against Best and/or the Christian Brothers.[33]  The letter confirmed that Waller Legal would act on a no-win/no-charge basis and that Mr Stevens had agreed to contribute $1,500 towards disbursements.  The letter noted that in May 2011, Best had been convicted of criminal offences against Mr Stevens.  It sought documents from Mr Stevens, including medical authorities, a transcript of his evidence, and a victim impact statement.  Under the heading ‘Investigation’, Waller Legal referred to the numerous people who contacted their office following extensive media coverage of the criminal trials against Best.  Waller Legal were gathering statements and background material to obtain ‘the complete picture.’  The letter highlighted the criticality of obtaining detailed statements with complaints about Best and identifying any patterns of behaviour that should have alerted authorities.  The letter stated:

   In order to establish that the Christian Brothers were negligent it will be necessary to prove that they knew or ought to have known that Best was a risk to students.[34]

   [33]Ibid 129.

   [34]Ibid.

2. On 11 January 2012, Waller Legal wrote a letter to Mr Stevens with advice about his claim (‘Waller Legal 11 Jan 12 letter of advice’).[35]  This advice included the following:

   I confirm your instructions to investigate prepare and issue Supreme Court proceedings on your behalf against the Christian Brothers and any other person as may be appropriate, such as individual Christian Brothers in charge of the order.  Various difficulties associated with your case have been discussed with you.  In particular, these difficulties include the expiration of the limitation of actions period and difficulties encountered in identifying the correct Catholic entity to sue.[36]

   [35]Ibid 131–132.  This letter is incorrectly dated 11 January 2011: see Transcript of Proceedings, Camden Stevens (a pseudonym) v Trustees of the Christian Brothers (S ECI 2023 02867, Ierodiaconou AsJ, 9 July 2025) (‘T’), 9.20–23.

   [36]Exhibit ‘SMS’ to the first Sheppard affidavit, 131.

3. On 13 July 2012, the solicitors for the Christian Brothers and their insurer confirmed they would suspend the running of the limitation period for clients of Waller Legal concerning claims against Best until 31 December 2012.[37]  

   [37]Ibid 140–142.

4. Mr Stevens says Waller Legal explained to him that, as a consequence of the LAA, he was outside the time limit and would therefore face legal obstacles in bringing a common law claim against the Catholic Church.[38] 

   [38]First Stevens affidavit, [24].

5. On 21 August 2013, a file note by Waller Legal records a discussion that took place between Mr Stevens and their office.[39]  It stated Mr Stevens sounded very down, was difficult, ‘almost irrational’, and noted his difficult financial circumstances after losing a major client and discovering he owed the Australian Taxation Office money.  He said he then needed ‘a lot more money’, and Waller Legal advised that if he lost a major client due to a downturn, it would be ‘very difficult to include that in his claim’ as it needed to be shown ‘the loss of earnings was related to his depression/anxiety … caused by the assault.’  The note then records:

   He then changed his tune, saying that he had been performing poorly and that’s why [the client] let him go.  He grew upset when I explained that we would need to be able to prove that income loss was caused by an injury flowing from the assault.

   I explained that we had not been able to prepare a loss of earnings component to his claim as he had not provided any information to us.[40]

   [39]Exhibit ‘SMS’ to the first Sheppard affidavit, 161.

   [40]Ibid.

Mr Stevens engages Porters Lawyers

1. On 7 October 2014, Waller Legal transferred Mr Stevens’ file to Porters Lawyers (‘PL’).[41] 

   [41]Ibid 172.

2. Mr Stevens recalls a PL solicitor, Mr Jason Parkinson, telling him that ‘the Catholic Church does not exist in a legal sense’.[42]  In or around late 2014 or early 2015, Mr Stevens researched the Ellis defence.[43]  He learned that it meant that it was ‘difficult or impossible to sue the Catholic Church’[44] and thought that Mr Ellis had committed suicide due to the stress of litigation against the Catholic Church.[45]  He believed the Ellis defence raised ‘significant difficulties’ in succeeding in his common law claim.[46]

   Correspondence between PL and Colins Biggers & Paisley Lawyers

   [42]First Stevens affidavit, [33].

   [43]Ibid [37].

   [44]Ibid [38].

   [45]Ibid [39].

   [46]Ibid [40].

3. On 30 October 2014, PL wrote to the then solicitors for the Christian Brothers, Colin Biggers & Paisley Lawyers (‘CBP’).  The letter sought:

   1. The identity and whereabouts of legal entity (sic) which operated the school           in 1975;

   2.        If the operator of the school was a corporate entity, then please advise      of the name of the corporate entity and the relevant legislation;

   3.        If the operator of the school was an unincorporated association, then           please advise:

   a)        The name of unincorporated association;

   b)        The name and whereabouts of the Provincial in 1975;

   c) The name and whereabouts of the Provincial Councillors in 1975;

   d)        The name and whereabouts of the Principal in 1975;

   e) If any of the above persons are deceased, please advise us of the identity and whereabouts of the Executor(s) of their Estate(s); and,

   f) The identity and whereabouts of the insurer of the school in 1975.[47]

   [47]Exhibit ‘PJM-1’ to the affidavit of Patrick John Monahan sworn on 10 February 2024, 23 (‘Monahan affidavit’).

4. On 19 November 2014, CBP replied to PL (‘CBP 19 Nov 14 letter to PL’), stating:

   We refer to your letter dated 30 October 2014 and reply to parts 1 to 3, (a) to (f), as follows:

   1.        Not applicable.

   2.        Not applicable.

   3. (a)       Congregation of the Christian Brothers in the Person of the Province Leader, Br Patrick Chanel Naughtin (deceased);

   4. (b)       Br Patrick Chanel Naughtin (deceased);

   5. (c)       Br Patrick Chanel Naughtin (deceased);

   Br David Plunket Carey (deceased);

   Br Patrick Brendan Murphy (deceased);

   Br Ronald Sylvester Stewart (deceased);

   Br Michael Borromeo Stallard (deceased);

   (d)       Br Bryan De Paul Noonan (deceased);

   (e) Trustees of the Christian Brothers (2 Thames Street, Balmain NSW 2041); and

   (f)        Not relevant.[48]

   [48]Ibid 25. Note, paragraphs 4.(b) and 5.(c) appear to be incorrectly labelled and are read as 3.(c) and (b).

5. On 12 December 2014, PL wrote again to CBP, noting they had not received a response.[49] 

   [49]Exhibit ‘PJM-1’ to the Monahan affidavit, 26.

6. On 15 December 2014, CBP replied to PL, noting they had responded.[50]  The letter stated that the operator of the College was an unincorporated association and ‘therefore neither a legal entity, nor a corporate entity.’  It said the operator of the College in 1975 was the ‘Congregation of the Christian Brothers in the Person of the Province Leader, Br Patrick Chanel Naughtin (deceased).’[51]

   [50]Ibid 27.

   [51]Ibid.

Mr Stevens issues proceedings

1. On 16 April 2015, Mr Stevens initiated proceedings in this Court against the Trustees of the Christian Brothers and related estates in respect of the sexual abuse perpetrated by Best (the ‘prior claim’).[52]  The defendants named were the Trustees of the Christian Brothers (first defendant), and the Trustees of the Christian Brothers as Executors of the Estate of the six deceased Christian Brothers named in the CBP 19 Nov 14 letter to PL (second to seventh defendants).  The defendants filed a defence dated 19 June 2015.[53]  Relevantly, the defence pleaded:

   27.Further and in answer to the whole of the Claim, the Defendants say that the Plaintiff’s claim against the Defendants is statute barred pursuant to the Limitation of Actions Act 1958.

   28. Further and in answer to the whole of the Claim insofar as it is based on equitable principles, the Defendants say that the Plaintiff is not entitled to maintain a cause of action against the Defendants as equity affords the Defendants the same limitations imposed by the Limitations of Actions Act 1958.

   29. Further and in answer to that part of the Claim based on equitable principles, the Defendants say that the plaintiff is not entitled to maintain a cause of action against the Defendants on the grounds of Laches on the part of the Plaintiff.

   30. Further and in addition, the Defendants state that the facts alleged by the Plaintiff do not give rise to a positive duty on the part of the Defendants or any of them to take positive steps to protect the Plaintiff from criminal acts by a third party, Brother Robert Best.[54]

   [52]Ibid 28–36.

   [53]Ibid 37–40.

   [54]Ibid 38–9.

2. On 23 June 2015, CBP wrote to PL (‘CBP 23 Jun 15 letter to PL’).  The letter states that the Christian Brothers consented to the Court appointing their current Province Leader as Administrator of the Estates for the proceeding:

   … with the power to do all things necessary or expedient in respect of the said proceedings, including entering into any compromise of such proceedings and the maintenance of any claim on any policies of insurance that may respond to any liability of the said Estates from the said proceedings.[55]

   [55]Ibid 41. 

Informal settlement conference

1. On 26 August 2015, there was an informal settlement conference (‘ISC’) between Mr Stevens and the Christian Brothers. 

2. Mr Harrison, solicitor for the Christian Brothers, deposes that beforehand, on 20 August 2015, PL served a position paper ahead of the ISC.  The position paper is in evidence.[56]  It was served with a schedule of damages and issues identifying a basis for the quantification of Mr Stevens’ claim.[57]  In terms of quantum, this totalled $625,086.33, plus interest, legal costs and disbursements.  It consisted of:

   (a)$200,000 for general damages;

   (b)$25,086.33 for past and future medical expenses; and

   (c)$400,000 for past and future loss of earning capacity.

   [56]Ibid 42–44.

   [57]Exhibit ‘SMS’ to the first Sheppard affidavit, 198–202.

3. Mr Stevens claimed that, but for the abuse, he would have completed two university degrees by 1989 and had a career in journalism.[58]

   [58]Ibid 202.

4. Mr Stevens’ evidence regarding the ISC is outlined below.  The proceeding did not resolve at the ISC.

5. Mr Harrison deposes that during the ISC, the parties engaged in seven rounds of offers to settle the proceeding.[59]  Mr Stevens opened the ISC with an offer of $600,000, inclusive of costs and disbursements, to which the Christian Brothers replied with an offer of $100,000, inclusive of costs and disbursements.  The ISC concluded with Mr Stevens making an offer of $430,000, inclusive of costs and disbursements, to which the Christian Brothers responded with an offer of $180,000, inclusive of costs and disbursements.[60]

   [59]First Harrison affidavit, [25].

   [60]Ibid.

Settlement

1. On 17 September 2015, PL wrote a letter of advice to Mr Stevens (‘PL 17 Sept 15 letter of advice’).[61]  It enclosed advice from Frank Tuscano of counsel, recommending that Mr Stevens make an offer of compromise for $250,000 plus costs and disbursements (‘Tuscano 11 Sept 15 advice letter’).[62]  The letter seeks Mr Stevens’ instructions to serve the proposed offer of compromise.  It states that, alternatively, Mr Stevens could file an amended statement of claim before making the offer, and that PL were in the process of finalising the amended pleading to include complaints made against Best.

   [61]Exhibit ‘SMS’ to the first Sheppard affidavit, 204–5.

   [62]Ibid 203.  See also exhibit ‘CH-2’ to the affidavit of Charles Harrison sworn 29 April 2025, 23 (‘second Harrison affidavit’).

2. By offer of compromise dated 23 September 2015, Mr Stevens sought $250,000 plus costs and disbursements.  The offer was open for 21 days.[63]

   [63]First Sheppard affidavit, [54]; exhibit ‘SMS’ to the first Sheppard affidavit, 206.

3. On 10 December 2015, Allison Clark, a solicitor employed by PL, wrote a letter of advice to Mr Stevens (‘PL 10 Dec 15 letter of advice’).[64]  It confirmed PL had served the offer of compromise and  the Christian Brothers had provided a ‘final settlement proposal’ for $200,000 inclusive of costs, disbursements and statutory paybacks, subject to Mr Stevens signing a deed of release.  PL sought his instructions on whether he wished to accept the Christian Brothers’ offer or make a counteroffer. The letter included the following advice:

   We refer you to our initial letter of advice setting out the hurdles you will need to overcome to be successful in Court.  These hurdles include the Limitation Act (ie the Statute of Limitations, which although abolished in Victoria can still be argued) and proving that the school knew or ought to have known that Brother Best was a risk to the children of the school and that the Christian Brothers knew of this risk prior to you being abused.[65]

   [64]Exhibit ‘CH-2’ to the second Harrison affidavit, 26–27.

   [65]Ibid 26.

4. The PL 10 Dec 15 letter of advice confirmed PL had obtained evidence from the Royal Commission that other complaints were made against Best while he was at St Alipius Primary School, Ballarat.  Still, they had yet to find evidence that someone else had complained about Best at the College before he abused Mr Stevens.[66]

   [66]Ibid.

5. On 25 January 2016, PL wrote to CBP confirming they had instructions to accept the Christian Brothers’ offer of $210,000, inclusive of costs and disbursements.[67]  On 12 February 2016, the parties entered into the prior deed.[68]

   [67]Exhibit ‘SMS’ to the first Sheppard affidavit, 232.

   [68]Ibid 238–246.

Mr Stevens engages Judy Courtin Legal

1. In 2021, a member of Victoria Police informed Mr Stevens that there had been legal changes relating to historic sexual abuse claims, which could impact his rights.  Consequently, Mr Stevens contacted Judy Courtin Legal in August 2021 and initiated this proceeding on 28 June 2023.[69]

   [69]First Stevens affidavit, [50]–[51].

2. By summons filed on 16 October 2024, Mr Stevens applied for the Court to set aside the prior deed. 

Mr Stevens’ evidence

1. I found Mr Stevens to be an honest and reliable witness.  His evidence was consistent, coherent and cogent.  Key parts of his evidence follow.

2. Mr Stevens received the Waller Legal 11 Jan 12 letter of advice.  It refers to the Ellis defence.  Mr Stevens conceded that he received no other written advice from solicitors regarding the Ellis defence.[70]

   [70]T 11.13–21; T 13.16–20.

3. Referring to the Waller Legal 15 Jul 11 letter of advice, Mr Stevens agreed this letter established that to succeed in his claim, he needed to show the Christian Brothers knew or ought to have known that, before his abuse, Best was a risk to children and that they failed to take appropriate action.[71]  He agreed that the letter advised his claim was out of time.[72]

   [71]T 12.15–21.

   [72]T 12.24–25.

4. Mr Stevens received advice stating it would be very difficult for him to make an economic loss claim regarding the loss of his income as a consultant, as the loss of that work was likely due to a downturn rather than any psychiatric condition.[73]  He agreed that he had a telephone conversation with Waller Legal regarding this on 21 August 2013.[74]

   [73]T 31.14–21.

   [74]T 31.23–28; exhibit ‘SMS’ to the first Sheppard affidavit, 161.

5. Mr Stevens later engaged PL in late 2013 / early 2014.  He received advice from them at the outset about the Ellis defence.[75]

   [75]T 13.28–31.

6. Mr Stevens was not aware that PL had asked the Christian Brothers to nominate appropriate defendants.[76]  The correspondence between PL and CBP was not familiar to him.[77]  He could not recall discussions with PL regarding this correspondence.[78]

   [76]T 17.24–28.

   [77]T 21.15–21.

   [78]T 21.30–22.2.

7. Mr Stevens was aware he had commenced legal proceedings,[79] but had no clear memory of actually commencing the claim.[80]  He could not recall any discussion about who the defendants would be.[81]  The writ and statement of claim were unfamiliar to him, and he could not remember reading the defence.[82]  Mr Stevens believed that to reach an ISC, legal proceedings needed to have commenced.[83]  He had often heard the statement that ‘nothing happens until a statement of claim is filed.’[84]  Further, he did not recall a proposed amended statement of claim.[85]

   [79]T 17.29–31.

   [80]T 26.16–21.

   [81]T 18.22–23.

   [82]T 22–19–23; T 24.17–20.

   [83]T 23.14–18.

   [84]T 23.23.

   [85]T 28.9–11.

8. Mr Stevens recalled the ISC,[86] however, he did not recollect the written position paper prepared for it.[87]  Nor did he recollect the schedule of damages and issues.[88]  He did not recall reading anything before he attended the ISC.[89]

   [86]T 26.22–24.

   [87]T 26.25–28; T 27.9–13.   

   [88]T 28.12–19.

   [89]T 28.20–23.

9. The ISC was attended by Mr Steven’s counsel, Mr Tuscano, Mr Parkinson and Ms Allison Clark from PL,[90] and a representative of the Catholic Church who gave Mr Stevens an apology.[91]  Mr Stevens said the ISC commenced at approximately 9:00am or 9:30am and finished around 10:30am.[92]  

   [90]See exhibit ‘CH-2’ to the second Harrison affidavit, 24.

   [91]First Stevens affidavit, [42].

   [92]T 28.24–27.

10. Mr Stevens deposed that he could not recall the parties exchanging many offers.  He believes his legal representatives only put forward one offer on his behalf.  PL explained to him that there were legal reasons for settling his claim, impressing upon him that there would be legal obstacles.[93]  Mr Stevens says at the ISC, PL told him that they could go no further with his claim and that the Christian Brothers’ final offer was ‘the best … [he] was going to get’.[94]  Specifically, he recalled:

    [93]First Stevens affidavit, [43]–[44].

    [94]Ibid [46].

    Mr Stevens: At the informal settlement conference, I was advised that the legal obstacles to my claim were difficult to overcome, and I was told by my solicitor, Mr Parkinson, that that amount that was offered was the best that could be offered given those obstacles.

    …

    Mr Stevens: He asked me what I wanted to do, and I told him I wanted to go home.

    …

    Mr Stevens:     And he — he told me to do that.[95]

    [95]T 17.1–8.

11. Consistent with this evidence, Mr Stevens said the Ellis defence was a ‘major part’ of his discussion with Mr Parkinson during the ISC, stating:

    Mr Stevens: … the concerns about Ellis were a major part of my conversation with Mr Parkinson during the ISC.

    Mr Hay KC:    What did he say about it?  

    Mr Stevens: Ah Mr Parkinson sat with me at — ah at a table after I’d um had the apology from, I think it was, a Brother Brandon.  The two of us sat there, I think, in silence while negotiations continued.  A figure returned, and to the best of my recollection, his statement was — and I’ll — you know, he — he had a very Australian way of referring to things — ‘This is the best you’re gonna get, mate.  The legal obstacles are too difficult to overcome.  What do you wanna do?’  And I said, ‘I would like to go home’.  I considered the figure too low, and I left.[96]

    [96]T 33.24–34.6.

12. Mr Stevens left the ISC feeling disappointed that his matter had not settled.  He felt the offers his legal representatives made on his behalf, as well as those from the Christian Brothers, were lower than he had hoped.  He had felt pressured by his solicitors to enter into a deed of release and resolve the matter.[97]

    [97]First Stevens affidavit, [47].

1. Mr Stevens received the PL 10 Dec 15 letter of advice shortly before the matter settled.  He agreed that this letter did not contain any reference to the Ellis defence.[98]  He said he felt some pressure from PL to settle.[99] 

   [98]T 16.18–22; exhibit ‘CH-2’ to the second Harrison affidavit, 26.

   [99]T 29.9–14.

2. Mr Stevens believed the reference to hurdles or obstacles at the ISC was about the limitation period and the Ellis defence.[100]

   [100]T 19.25–30; T 20.17–18.

3. Mr Stevens was worried about the Christian Brothers taking the Ellis defence.[101]  He relied on his lawyers to inform him of anything relevant to his claim, as well as his ability to source information.[102]   His research did not go beyond ‘googling’ the Ellis defence.[103]  Advice from PL was relevant to his decision to settle.[104]  He expected them to consider whether any limitation period applied and whether the Christian Brothers raised the Ellis defence.[105]

   [101]T 25.5–7.

   [102]T 25.8–11.

   [103]T 28.28–31.

   [104]        T 25.18–20.

   [105]T 25.21–25.

4. The PL 10 Dec 15 letter of advice was not material in his decision to settle.[106]  He referred to the advice given at the ISC, and then immediately said the following:

   [106]T 16.30–31.

   Mr Stevens: Um so from the informal settlement conference right through until when I settled, top of mind for me was the Ellis defence as a legal obstacle in my claim succeeding.

   Mr Hay KC:    Why is that?  It’s not in any of the correspondence you received?  

   Mr Stevens: I suppose it’s just a salient point that occurred to me right throughout all of my meetings with solicitors from Vivian Waller until I signed, and when I read The Sydney Morning Herald article about it, it shocked me to the point that I believed that Mr Ellis had committed suicide as a result of the obstructions put in his way.

   Mr Hay KC:    Do you know if you’re right or wrong about that?  

   Mr Stevens:     I — I subsequently discovered that Mr Ellis is alive and well.[107]

   [107]T 17.9–22.

5. Mr Stevens believed the legal obstacles were the limitation period and the Ellis defence.  He acknowledged receiving written legal advice about other difficulties with his case but the Ellis defence was the ‘big issue’ for him.[108]  He stated:

   Mr Stevens: I can answer it this way:  I understand that a client of a firm has a responsibility to read written material sent to them, um and, um you know, I did that to the best of my ability, but my understanding also involves conversations that I had with the — with the lawyers, and — and my own research and interest in what’s involved.[109]

   [108]T 20.16–23–26.

   [109]T 20.30–21.4.

6. When Mr Stevens signed the prior deed in February 2016, he believed that succeeding in his common law claim would be very difficult due to the Ellis defence and the limitation period.  He thought his settlement represented the best he could do.[110]

   [110]First Stevens affidavit, [49].

7. Mr Stevens rejected the contention that things other than the Ellis defence factored clearly in his mind when he settled.  He referred to advice given by Mr Parkinson, saying the legal obstacles are too difficult to overcome.

   Mr Stevens: [W]e had conversations by phone, and when I first met him, about the Ellis defence as a legal obstacle, and in my mind, at the informal settlement conference.  That reference was what that was about.[111]

   [111]T 35.9–12.

8. He gave evidence about the oral legal advice provided regarding the Ellis defence: 

   Dr Boas: … you had other conversations with your lawyers since the time that you received that written advice about the Ellis defence?  

   Mr Stevens:     I have, yes.

   Dr Boas: And can you describe broadly what the nature of the advice or conversations were?  

   Mr Stevens: To the best of my recollection, it’s a simple sentence; the Catholic Church doesn’t exist.  It’s not a legal entity, and it can’t be sued.

   Dr Boas:Okay.  Are you able to estimate at all the number of occasions on which you had a conversation, casually or otherwise, with one of your lawyers to that effect?  

   Mr Stevens: Ah with Dr Vivian Waller once in Melbourne, with Jason Parkinson at the first meeting where I met him; um on the phone subsequently and after the informal settlement conference.  Or perhaps added phrase, ‘The Catholic Church hasn’t been to court since the Ellis defence’.  Um and with Allison Clark, it would have been ‘Well, these are legal obstacles, you understand’, referring back to those conversations at the informal settlement conference.

   Dr Boas: So when you were told these are legal obstacles by Ms Clark or by Mr Parkinson at the ISC, what did you understand that to be?  

   Mr Stevens:Yep.  Ah being out of time and um the Ellis defence.  Yes.

   Dr Boas: What was the most significant factor in your mind at the time that you settled your claim and entered into the deed?  

   Mr Stevens: Oh the Ellis defence, absolutely.

   Dr Boas: Why was that?  

   Mr Stevens Um I think probably from the time that I read about it, um I believed that Mr Ellis had killed himself.  Um it just struck me as an incredibly difficult thing to deal with, and I had no idea about how to fix that.

   Dr Boas: What did you understand by your reference just now to the Christian Brothers, well, ‘The Church hasn’t been to court since Ellis’.  What did you understand that to mean?  

   Mr Stevens: …  I mistakenly believed that the Ellis defence was a High Court decision.  Um I’ve subsequently discovered that it was a New South Wales Court of Appeal decision.  I believed that that finalised the matter and -and meant legal challenges could not occur. [112]

   [112]T 35.23–36.30.

9. At the time Mr Stevens accepted the offer to settle, he felt PL solicitor, Ms Clark was telling him he needed to accept the offer.[113]  He could not speculate as to what he would have done if his solicitors had not pressured him.[114]

   [113]T 29.9–14.

   [114]T 29.30–30.6.

10. Regarding disclosures to doctors preparing medico-legal reports, he does not recall disclosing any other things that negatively impacted his health.[115]  He discussed the incident of being assaulted by a trusted adult (Best) when he was 10 years old.[116]  He agreed that he had a traumatising experience living in Cambodia, and that his younger brother assaulted him, breaking his jaw.[117]  These other events were significant to him as an adult, but they were dwarfed by his assault as a ten-year-old.[118]  He began drinking at 16 years old and continued until he was 47 years old.  He does not recall disclosing a strong family history of alcohol and violence to the doctors.[119] 

    [115]T 32.11–13.

    [116]T 32.8–10.

    [117]T 32.17–31.

    [118]T 37.9–14.

    [119]T 33.4–17.

11. It was only over the last year that Mr Stevens first learned of the removal of the limitation period.  He discovered this from his solicitors. [120] 

    [120]T 8.9–13.

Should adverse inferences be drawn from Mr Stevens’ failure to call witnesses?

1. The Christian Brothers submitted that the Court should draw adverse inferences consequential to Mr Stevens’ failure to call his previous solicitors, counsel, and a law clerk to give evidence.  Mr Stevens strongly opposes this submission. 

Christian Brothers’ submissions

1. Mr Stevens did not call his previous lawyers to give evidence.  He made late inquiries of two lawyers.  There is no evidence that he made inquiries of Ms Clark or Ms Heather Ross of PL, or Mr Tuscano of counsel, or other solicitors involved in the file.  Mr Stevens could have made inquiries as to their understanding of the Ellis defence.  Instead, he leaves the Court with his erroneous understanding.  No solicitors provided evidence explaining the motivating factors behind the advice to settle, including the PL 10 Dec 15 letter of advice.  That advice is likely to be the most reliable source of the true motivation behind the case, insofar as his lawyers advised him to accept the offer.  The Court should draw an adverse inference: their evidence would not have been helpful to him.  The Ellis defence was not an insurmountable obstacle.  PL did not consider that the Ellis defence had any material impact on Mr Stevens’ claim.

Mr Stevens’ submissions

1. Mr Stevens made proper efforts to determine whether there would be assistance from Mr Stevens’ former lawyers in this application.  It cannot be right that a plaintiff must go far and wide to identify any lawyer with any role in advice given ten years ago to see if they say something relevant.  He queries what they could say that might be relevant beyond the extensive material on file.  Mr Stevens’ current lawyers approached the principal lawyers involved.  There is no basis to draw an adverse inference. 

2. Turning now to my analysis of these submissions.

Analysis - Dr Waller of Waller Legal, Mr Parkinson of PL

1. I decline to draw an adverse inference because Mr Stevens did not call Mr Parkinson of PL and Dr Vivian Waller of Waller Legal as witnesses.  I decline to draw the inference that Mr Parkinson of PL did not advise Mr Stevens that the Ellis defence was an obstacle.  There is a reasonable explanation why Mr Stevens did not call Dr Waller and Mr Parkinson.  The evidence shows that Mr Stevens’ current lawyers emailed them.  They received a response, relayed via solicitors, that they had no independent recollection beyond the file of Mr Stevens’ prior claim or the conduct of his file.[121]  I make no finding about whether they have an independent recollection, as the representation is second-hand hearsay.  The emails show that Mr Stevens’ lawyers made appropriate inquiries. 

   [121]Exhibit ‘SMS’ to the affidavit of Samuel Mark Sheppard affirmed on 7 July 2025, 5, 11 (‘second Shephard affidavit’).

Analysis - Ms Zelez of Waller Legal

1. In an email to Mr Stevens, Ms Zelez’s position is recorded as ‘law clerk’.[122]  Mr Stevens regarded Dr Waller as the solicitor acting for him at that time.[123]    Ms Zelez is not the author of the letters of advice to Mr Stevens.  Dr Waller is the author.  Ms Zelez’s communications with Mr Stevens appear consistent with the role of a law clerk.  Most communications concern Waller Legal obtaining documents for his economic loss claim.[124]  Here, it is uncontroversial that Mr Stevens made an economic loss claim.  It was not contended that Ms Zelez was present at conferences where Dr Waller provided legal advice to Mr Stevens, or that Ms Zelez gave legal advice to Mr Stevens.  The Christian Brothers do not question the veracity of the correspondence sent from Waller Legal to Mr Stevens.  In all the circumstances, Ms Zelez’s evidence in this application could only be peripheral. 

   [122]Exhibit ‘SMS’ to the first Sheppard affidavit, 169.

   [123]Ibid 170.

   [124]Ibid 160, 169.

2. The circumstances are distinguishable from those in Pearce v Waller Legal Pty Ltd (‘Pearce v Waller Legal’),[125] relied upon by the Christian Brothers.  In Pearce v Waller Legal, J Forrest J drew an adverse inference from Dr Waller’s failure to call Ms Zelez.[126]  However, that was a claim of negligence against Waller Legal, and Ms Zelez, perhaps a lawyer by then, was managing Mr Pearce’s claim.  Ms Zelez made notes during a long discussion about the settlement of his claim, and Dr Waller made no notes.

   [125][2025] VSC 324 (‘Pearce v Waller Legal’).

   [126]Ibid [109]–[112] (J Forrest J).

Analysis - Ms Allison Clark of PL

1. Ms Clark’s correspondence to CBP records that she was a solicitor with PL.[127]  Mr Stevens’ evidence is that when he settled his prior claim, she was the solicitor who spoke with him about his final decisions:

   [Allison Clark] was very much of the opinion that I needed to accept what was being offered and it was the best I could do.  What she was telling me was very similar to what Parkinson was telling me at the Informal Settlement Conference.[128] 

   [127]Exhibit ‘SMS’ to the first Sheppard affidavit, 178.

   [128]First Stevens affidavit, [48].

2. Ms Clark’s evidence may have assisted the Court in determining whether PL advised him to settle because it was the best he could do, and whether she advised Mr Stevens about the Ellis defence.  I find that he received legal advice to settle.  That is consistent with the evidence.  As described above, it is evident that the settlement of $210,000 occurred in circumstances where Mr Stevens, acting upon counsel’s advice, had earlier made an offer of compromise for $250,000 plus costs and disbursements.  The Christian Brothers counteroffered with $200,000.  This counteroffer was recorded in the PL 10 Dec 15 letter of advice, which states that the Christian Brothers referred to it as a final settlement proposal, and points out the hurdles to Mr Stevens’ claim.  Further negotiation between the parties must have occurred, as evidenced by the Christian Brothers’ subsequent offer, recorded in the deed, of $210,000 plus costs. 

3. There is no record of any telephone conversation or email exchange between Mr Stevens and Ms Clark recording his instructions to agree to the offer of $210,000 plus costs.  A letter of 1 February 2016 (‘PL 1 Feb 16 letter’) records that Mr Stevens gave those instructions in a telephone conversation with Ms Ross on 20 January 2016.[129]  It is uncontroversial that Mr Stevens gave those instructions to PL.  Ms Clark signed the solicitor’s certificate annexed to the prior deed.  It confirms that she explained the purport and effect of the prior deed to Mr Stevens, and that he signed it voluntarily.  He has not suggested otherwise. 

   [129]Exhibit ‘SMS’ to the first Sheppard affidavit, 233.

4. Mr Stevens said Ms Clark advised him there were obstacles to his claim.  He said that she was advising him similarly to Mr Parkinson during the ISC.  To recall, Mr Stevens’ evidence was that Mr Parkinson advised him of the Ellis defence as an obstacle.  He assumed that Ms Clark’s reference to legal obstacles was a reference to the Ellis defence.  He did not say that Ms Clark advised him that the Ellis defence was an obstacle.  I infer that she did not.  I find Ms Clark did not advise Mr Stevens that the Ellis defence was an obstacle.  Mr Stevens’ assumption that her reference to legal obstacles was a reference to the Ellis defence was erroneous.

5. I decline to draw an adverse inference about Mr Stevens’ state of mind.  Specifically, I decline to infer that the Ellis defence was not a factor motivating Mr Stevens to settle.  The Christian Brothers did not challenge the truthfulness of Mr Stevens’ evidence, save to say he may have elevated the primacy of the Ellis defence as a motivating factor.  I found him to be a truthful witness. 

Analysis - Ms Heather Ross of PL

1. Ms Ross’ correspondence to CBP records her as a senior associate with PL.[130]  As outlined above, the PL 1 Feb 16 letter records that Mr Stevens gave her instructions to accept the Christian Brothers’ offer of $210,000.  She signed the notice of discontinuance of the prior claim on behalf of Mr Stevens.  The analysis regarding Ms Clark applies: I accept Mr Stevens received legal advice to settle, there is no evidence that Ms Ross advised him the Ellis defence was an obstacle, and I decline to draw an adverse inference about Mr Stevens’ state of mind.

   [130]Ibid 176.

Analysis - Mr Frank Tuscano of counsel

1. Mr Tuscano provided advice to Mr Stevens at the ISC, although Mr Tuscano left early.  I accept there is a slight possibility his evidence may assist in establishing whether Mr Stevens was given legal advice about the Ellis defence during the ISC.  Mr Stevens does not say that Mr Tuscano provided that advice.  Mr Stevens says Mr Parkinson provided him with legal advice. 

2. Mr Tuscano also provided written advice regarding the offer of compromise.  The Christian Brothers did not accept the offer.  There is no evidence to suggest that Mr Tuscano advised Mr Stevens to enter into the prior deed.  Nor is there evidence that Mr Tuscano advised him that the Ellis defence was an obstacle.  Otherwise, for similar reasons as outlined above with Ms Clark and Ms Ross, I do not draw an adverse inference about Mr Stevens’ state of mind.

Statement of agreed facts

1. On 8 July 2025, pursuant to s 191 of the Evidence Act 2008 (Vic), a statement of agreed facts was provided to the Court and read as follows:

   1. In relation to Mr Steven’s prior claim, Colin Biggers & Paisley Lawyers (CBP) acted on behalf of the Christian Brothers on instructions from Catholic Church Insurance (CCI);

   2. CBP has acted for various religious orders which were insured by CCI in relation to claims involving historical sexual abuse;

   3. On 22 May 2015, the Truth Justice Healing Council (TJHC), which represented Catholic congregations and dioceses including the Christian Brothers, issued a media release stating that Sydney’s Archbishop Fisher said that the Ellis defence was no longer a legal tactic used within his Archdiocese and that this position has now been fully endorsed by a number of Catholic institutions, including the Christian Brothers;

   4. On 30 March 2016, the Christian Brothers published a media release confirming that in historical abuse claims, the Christian Brothers would nominate a proper legal entity, backed by sufficient assets to satisfy any settlement or judgment, to enable claimants to commence civil proceedings;

   5. There was no public statement on the issue of the Ellis defence made by CCI in relation to insured claims managed by CCI;

   6. Prior to the Ellis reforms (i.e. the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), it was the practice of the Christian Brothers and CCI to provide names of individuals, such as a principal of a relevant school or the provincial of the Christian Brothers for the purposes of potential litigation. Often this could include multiple names, including Trustees of the Christian Brothers; and

   7. As at 2015, no plaintiff had been successful or unsuccessful in suing a Provincial of the Christian Brothers, a Principal of a relevant school operated by the Christian Brothers and/or individual members of the Provincial Council of the Christian Brothers in a litigated claim. The Christian Brothers had never been involved in civil litigation relating to a claim for damages arising from historical child abuse which had proceeded to judgment.

   8. Individual Brothers of the Christian Brothers took a vow of poverty.[131]

   [131]Statement of agreed facts dated 8 July 2025 (‘statement of agreed facts’).

Legislation and applicable principles

1. The Ellis defence was a legal barrier in place affecting historic child sexual abuse claims.  I gratefully adopt the following summary of the Ellis defence given recently by J Forrest J in Pearce v Waller Legal Pty Ltd:

   In practical terms, Ellis spelt out that in pursuing a claim against a member of the Catholic clergy there were significant, if not at times insurmountable, obstacles in identifying an appropriate defendant other than the alleged offender.  There were many diverse organisations or persons running schools, orphanages, parishes and archdioceses which had no corporate being. Identifying a tenable defendant in a claim was particularly difficult.  The offender personally was unlikely to have assets.  Those corporations with Catholic affiliations that existed usually had a limited function such as holding land and did not directly operate a school or employ clergy.  Diocesan priests or assistant priests were probably not employees of the diocese — and in any event it had no corporate entity.  Even if an extant relevant organisation or person who had some responsibility for the conduct of the offender could be identified and was potentially liable (this usually required establishing that there was knowledge of the offender’s propensity), then there was a question as to whether there were assets sufficient to meet the claim.

   Dr Waller said (and I accept) that the decision in Ellis merely identified at that time, what were already apparent to those who practiced in this area, significant jurisprudential and practical problems in prosecuting any claim against a religious institution that was unincorporated — as most if not all were. …

   The Victorian Attorney General, Mr Pakula, described the situation in speaking to the Wrongs Amendment (Organisational Child Abuse) Bill 2016:

   The Family and Community Development Committee tabled its landmark report Betrayal of Trust on 13 November 2013.  The report highlighted, among other things, the difficulties that survivors of organisational child abuse face in recovering compensation for the devastating effects of their abuse, and the lack of clarity in the common law about when an organisation might be liable for child abuse perpetrated by its personnel.

   In particular, the Family and Community Development Committee found that the common law has not developed sufficiently in Australia to recognise the liability of organisations for child abuse perpetrated by organisational representatives.

   Indeed, despite recent developments in the High Court, the law of vicarious liability and non-delegable duties in relation to organisational child abuse is still an area of great uncertainty and confusion in Australia.

   Historically, Australian courts have been reluctant to find that an organisation can ever be vicariously liable for the deliberate criminal acts of its employees. The courts have not indicated a clear willingness to establish vicarious lability in circumstances outside of a strict employee-employer relationship, and have also been reluctant to include intentional criminal conduct within the scope of non-delegable duties. In addition, within the existing law of negligence, it can be very difficult to make out a duty of care that encompasses the prevention of harm caused by criminal conduct.

   This uncertainty is of no benefit to plaintiffs and defendants alike. Plaintiffs often find it difficult to recover compensation against organisations for organisational child abuse they have suffered.  There is also little clarity for defendants about when an organisation might be subject to liability for child abuse perpetrated by its personnel.

   In the Betrayal of Trust report, the Family and Community Development Committee concluded that statutory intervention was necessary, stating that organisations should have ‘a clear legal duty to take appropriate measures to minimise the risk of abuse that arises because of the creation of relationships of trust for which they are responsible’, and that ‘there is a need to recognise the legal obligation of organisations to reasonably ensure the safety of children who come into contact with their members’.

   …

   The bill provides the legislative response that is required.  As recommended by Betrayal of Trust, the bill amends the Wrongs Act 1958 to create a duty of care that will allow an organisation to be held liable in negligence for specified contexts of organisational child abuse committed by individuals associated with the organisation, unless the organisation proves that it took reasonable precautions to prevent the abuse.[132]

   [132]Pearce v Waller Legal, [95]–[97] (citations omitted).

1. As outlined above, in this proceeding it is an agreed fact that on 22 May 2015, Archbishop Fisher said the Ellis defence would no longer be used as a legal tactic.

2. As summarised by the High Court in DZY (a pseudonym) v Trustees of the Christian Brothers (‘DZY’),[133] legislation abolished the Ellis defence and the limitation period in child sex abuse claims.[134]  The statutory limitation period had operated as a barrier to historic child sexual abuse claims.  From 1 July 2015, the LAA was amended to remove the limitation period for a personal injury action resulting from physical or sexual abuse of a minor, and any consequential psychological abuse arising from that abuse.

   [133]DZY.

   [134]Ibid [3] (Gageler CJ, Gordon J, Edelman J, Steward J, Gleeson J).

3. Additionally, from 18 September 2019, s 27OA and ss 27QA to 27QF were inserted into the LAA.  This meant that ‘an action for personal injury resulting from physical or sexual abuse of a minor, and any psychological abuse that arises from that abuse, may be brought on a “previously settled cause of action“‘.[135]  A plaintiff may then apply to the court to set aside a prior agreement of such a cause of action if they believe it is ‘just and reasonable’ to do so.[136]

   [135]Ibid [4].

   [136]Ibid.

4. Sections 27QA and 27QD of the LAA allow Mr Stevens 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.

5. In DZY, the High Court held the words ‘just and reasonable’ are ‘words of wide import’.[137]  The High Court cited Fraser JA’s useful approach in TRG v Board of Trustees of the Brisbane Grammar School,[138]

   … [t]he legislative purpose encompasses account being taken of the interests of both parties to the settlement in deciding whether it is just and reasonable to set aside the settlement agreement, the relative significance or weight to be given to the material factors in that exercise depending upon a judicial assessment of the particular circumstances of each case.[139] 

   [137]Ibid, [25].

   [138](2020) 5 QR 440.

   [139]DZY, [26] (Gageler CJ, Gordon J, Edelman J, Steward J, Gleeson J).

6. The High Court emphasised the ‘breadth of the words “just and reasonable” in s 27QE allow a court to set aside settlements in response to a variety of injustices.’[140]  The High Court cited, for example, the Explanatory Memorandum and the Second Reading Speech of the Children Legislation Amendment Bill 2019 (Vic):

   It is in the court’s discretion to determine what is just and reasonable according to the circumstances of each case, allowing the court to apply broad principles and take account of any relevant factors. This may include, for example, the relative strengths of the parties’ bargaining positions, the conduct of the parties and the amount of the settlement.

   Similarly, in the Second Reading Speech, the Minister said:

   In determining what is just and reasonable a court can take into account a number of considerations, informed by the Royal Commission. … Where survivors faced significant disadvantage in pursuing compensation due to legal barriers such as the statute of limitations, the Ellis defence, or the deficiency of the law regarding the duty of care of organisations, settlements entered into should be set aside in the interests of justice, to allow victims to obtain compensation which is deemed adequate by today’s standards.

   …

   It is not necessary that the existence of the limitation period be the predominant reason as to why the agreement was entered into. There may be a number of reasons that a plaintiff entered into such an agreement, including but not limited to unequal bargaining power, barriers to identifying a proper defendant, feelings of guilt and shame compounded by the burden of giving evidence and being subject to cross-examination, or the behaviour of the relevant institution.[141]

   [140]Ibid [27].

   [141]Ibid [27]–[28] (citations omitted).

7. The High Court held, consistent with s 27QE, the exercise of the Court’s power ‘is not fettered such that no order is to be made unless there is a finding that either the limitation defence or the Ellis defence had a “material impact” on the claimant’s decision to settle or was a leading factor in the decision.’[142] However, the legal barriers are relevant. ‘One or both of the legal barriers will ordinarily play some part in determining whether it is just and reasonable to set aside a settlement agreement under s 27QE.’[143]

   [142]Ibid [29].

   [143]Ibid [30].

Is it just and reasonable to set aside the prior deed?

1. The issue is whether it is just and reasonable to set aside the prior deed.  Mr Stevens says it would be just and reasonable.  The Christian Brothers say he has not established that.

Did the Ellis defence impact Mr Stevens’ decision to enter into the prior deed?

Mr Stevens’ submissions

1. From the time Waller Legal advised him in about 2011, Mr Stevens was aware that the Ellis defence was an obstacle to his prior claim.  He settled his claim on the basis that this and the limitation defence were significant and real barriers, and the proposed settlement was the ‘best he could do’, having regard to those barriers. 

2. Mr Stevens was unaware that, by the time he signed the prior deed, it was the Christian Brothers’ practice not to invoke the Ellis defence.  He was unaware that they had placed no overt reliance on it in their defence at that time.  He received no advice that the Christian Brothers would not rely on the defence.  Moreover, by the terms of the prior deed, the Christian Brothers specifically did not admit they could be legally liable to Mr Stevens.  The Christian Brothers cannot say that the Ellis defence did not play a role in the settlement discussions between the parties.

3. Mr Stevens’ subjective belief in deciding to enter into the prior deed is important.[144]  The Ellis defence was a key issue in his mind.  That is his clear recollection and conviction.

   [144]O’Connor v Trustees of the Christian Brothers [2025] VSC 65, [115] (‘O’Connor’); Gregory Barclay v Trustees of the Marist Brothers [2024] VCC 1859, [240], [387] (‘Barclay’).

4. Mr Stevens was not acting on a misconceived understanding about the application of the Ellis defence.  The Ellis defence operated as an obstacle at the time of the settlement.  This obstacle is evident from the difficulties faced by PL in identifying individuals who might be capable of being sued.  Further, in its defence, the Christian Brothers denied that any named individual breached a duty of care or was vicariously liable.  Without the abolition of the Ellis defence, Mr Stevens faced a significant obstacle. 

5. The Christian Brothers did not provide a proper legal identity to sue.  In distinction to O’Connor v Trustees of the Christian Brothers (‘O’Connor’),[145] there was no offer of indemnity.  The Christian Brothers proffered a series of straw men at the time.  They purported to provide the names of individual defendants against whom Mr Stevens had no viable claim.  The defence to Mr Stevens’ claim showed the Christian Brothers denied liability.   

   [145]O’Connor, [129], [140].

6. The individuals nominated as defendants by the Christian Brothers were not individuals against whom it was realistic to consider that Mr Stevens would establish liability. 

7. The Christian Brothers admitted the non-delegable duties of individuals in paragraph 21A of the defence.  The Christian Brothers allege a circuitous relationship whereby each person, a priest who has taken a vow of poverty, is represented by trustees as executors of the deceased estates.  They made no offer to indemnify the individual priests.  There are significant difficulties in attributing knowledge to an individual as opposed to a corporation.  The facts are analogous to Barclay v Trustees of the Marist Brothers (‘Barclay’).[146]

   [146]Barclay.

8. The individual defendants had no assets or money.  The CBP 23 Jun 15 letter to PL does not mention an insurance policy.  The Christian Brothers did not confirm an indemnity or that it would correspond to Mr Stevens’ claim.  There was no indemnity proffered.

9. If the Truth Justice Healing Council (‘TJHC’) 22 May 2015 media release[147] was genuine, then the Christian Brothers would have nominated an entity or offered an indemnity.  Instead, they denied that they owed a duty and liability, and raised technical defences. 

   [147]Exhibit ‘CH-1’ to the affidavit of Charles Harrison dated 6 December 2024, 92–93 (‘first Harrison affidavit’); statement of agreed facts, [3].

10. The Christian Brothers’ statement in March 2016 is irrelevant.[148]  Mr Stevens signed the prior deed in February 2016. 

    [148]Exhibit ‘CH-1’ to the first Harrison affidavit, 94; statement of agreed facts, [4].

11. As referenced in the agreed facts, as of 2015, no plaintiff had litigated a case to judgment after Ellis.  PL continued to tell Mr Stevens that he could not do any better than what the Christian Brothers offered him.  The prior deed was made two years before the legislative changes abolishing the Ellis defence.

12. Mr Stevens’ subjective beliefs about Ellis are part of the circumstances to consider.  They were material in his decision to enter into the prior deed.  His subjective belief is relevant to the question of what impediments he faced.  There is no basis to consider that Parliament intended to protect the defendant unless they were specifically to blame for the impediments.  Mr Stevens says they are.  But, even if they are not, his belief is still appropriate to consider in deciding whether it is just and reasonable to set aside the prior deed.

13. In reply to the Christian Brothers, they did not put to Mr Stevens that he was exaggerating the importance of the Ellis defence in his decision to settle.  His evidence is that it preoccupied him.

Christian Brothers’ submissions

1. At no stage during the prior claim did the Christian Brothers rely upon or raise the Ellis defence.  This fact accords with the standard practice of the Christian Brothers at that time. 

2. As evidenced by the Monahan and Harrison affidavits, at no stage during the prior claim did Mr Stevens’ lawyers raise any issue or concerns with the Christian Brothers as to a perceived risk of Ellis defence issues arising.[149]  They did not raise a concern about whether the nominated defendants had assets or insurance. 

   [149]Monahan affidavit, [18], [28], [30]–[31]; first Harrison affidavit, [37]–[39].

3. At the request of Mr Stevens’ solicitors, the Christian Brothers provided details of the proper defendants.  Mr Stevens relied upon this information to commence the prior claim.  The seven named defendants are those identified by the Christian Brothers in the CBP 19 Nov 14 letter to PL. 

4. Mr Stevens’ solicitors filed a proper basis certificate acknowledging a proper basis for each of the allegations of fact in the statement of claim.  This certificate effectively puts forth that there was a proper basis to join each defendant.

5. The defence does not rely upon the Ellis defence.  By the defence, the Christian Brothers admit the College was under the care, management and control of the Christian Brothers in the person of the relevant Province Leader, acting on the authority of the Provincial Council.  The prior claim names the executors of the estates of the Province Leader and Council as defendants.  The defence admits they owed a non-delegable duty of care to exercise reasonable care for Mr Stevens.  The defence does not contest the naming of the executors of the estates of the Provincial Leader, Council, or school principal.

6. By the CBP 23 Jun 15 letter to PL, the Christian Brothers confirmed they would consent to the current Provincial being granted letters of administration of the estates for the individual defendants so that he could represent the estates and,

   do all things necessary or expedient in respect of the said proceedings, including entering into any compromise of such proceedings and the maintenance of any claim on any policies of insurance that may respond to any liability...[150]

   [150]Exhibit ‘CH-1’ to the first Harrison affidavit, 91.

7. It is not open to Mr Stevens to manufacture difficulties that should have occurred to his lawyers at the time, but did not.  It was not contended, as it is now, that the defendants were straw men.  There was an undertaking to maintain any insurance policies.[151]  There is no evidence that the lack of indemnity was a material factor in whether to settle the claim.

   [151]Ibid.

8. Beyond the Waller Legal 11 Jan 12 letter of advice, there is no other independent documentary evidence of Mr Stevens’ solicitors advising him about any Ellis defence issues adversely affecting the prospects of his claim.  There was no reference to that in the PL 17 Sept 15 and 10 Dec 15 letters of advice, nor the Tuscano 11 Sept 15 advice letter.  Nor was there a reference to Ellis in the position paper or schedule of damages and issues prepared by PL for the ISC.  The Court should draw a strong inference that at all material times between the commencement of the prior claim and the decision to resolve it, PL did not consider that the Ellis defence had any material impact upon Mr Stevens’ claim.

9. This case is distinguishable from other cases in which a limitation period and the Ellis defence had a material influence, or where the limitation period had a partial influence.[152]

   [152]See Roman Catholic Trusts Corporation for the Diocese of Sale vWCB (2020) 62 VR 234, [78]–[79], [155]–[156] (Beach, Kaye and Osborn JJA) (‘WCB’); Jens v Society of Jesus in Australia [2024] VSC 329, [120]–[125] (‘Jens’); Williams v State of Victoria [2022] VSC 456, [102]–[103], [118] (‘Williams’).

10. The Court should reject Mr Stevens’ submission that his erroneous subjective belief that Ellis was an obstacle is a decisive factor in this application.  Merely holding an erroneous subjective belief cannot provide a sound basis to set aside a prior deed.  The Court should hold that a belief about the effect of the Ellis defence must be objectively correct before the statutory criteria can be satisfied.  The object of the statute is not to protect plaintiffs from the consequences of erroneous beliefs. 

11. The Christian Brothers rely on O’Connor, in which the plaintiff’s application to set aside a previous settlement was unsuccessful.  This outcome was partly because the defendant did not rely on an Ellis defence and had nominated a proper defendant, which removed the legal barrier. 

12. The Christian Brothers played no role in inducing Mr Stevens’ belief about the application of the Ellis defence.

13. The Court should look at the contemporaneous material and deduce what was Mr Stevens’ likely motivation for entering into the prior deed.  There is a question as to whether Ellis has elevated in his mind since then, because it is relevant to the question of whether the Court should set the prior deed aside. 

Analysis

1. There are three issues to determine.  Firstly, did the Ellis defence impact Mr Stevens’ decision to enter into the prior deed?  Secondly, did Mr Stevens hold an erroneous belief that the Ellis defence was a barrier to the prior claim?  Thirdly, if Mr Stevens’ belief was erroneous, is it a factor for the Court to consider in deciding whether it is just and reasonable to set aside the prior deed?

   Did the Ellis defence impact upon Mr Stevens’ decision to enter into the prior deed?

2. The Ellis defence impacted upon Mr Stevens’ decision to enter into the prior deed. 

3. The parties executed the prior deed before the legislative amendments which removed the Ellis defence; however, the Christian Brothers did not rely on the Ellis defence.  Nevertheless, I accept Mr Stevens’ evidence, outlined above, that he believed the Ellis defence applied at the time he entered into the prior deed.  I accept his evidence that it was a leading factor.  The Christian Brothers contend that this factor may have been elevated in Mr Stevens’ mind, given the importance of the issue in this application.  This contention must be firmly rejected.  As I have described above, Mr Stevens was steadfast in his evidence that, since receiving the initial advice from Waller Legal that it was a barrier to his claim, he continued to hold that belief and did so at the time of entering into the prior deed.  Cross-examination did not establish that he had engaged in any hindsight thinking.

   Did Mr Stevens hold an erroneous belief that the Ellis defence was a barrier to the prior claim?

4. I find that Mr Stevens held an erroneous belief that the Ellis defence remained a barrier at the time he settled his prior claim.  Whilst the settlement occurred before the legislative amendments removing the barrier, the Christian Brothers did not plead the Ellis defence.  The first defendant was the Trustees of the Christian Brothers.  It would have been open to the Christian Brothers to plead the defence.  Not pleading the defence was consistent with the TJHC 22 May 2015 media release (referenced above in the agreed facts). 

   If Mr Stevens’ belief was erroneous, is it a factor for the Court to consider in deciding whether it is just and reasonable to set aside the prior deed?

5. I find that Mr Stevens’ belief that the Ellis defence applied, although erroneous, is a factor the Court can take into account in deciding whether it is just and reasonable to set aside the prior deed.  It is part of the factual matrix. 

6. I reject the Christian Brothers’ submission that the belief must be objectively correct to be considered.  There is no such fetter in the legislation.   To the contrary, as outlined above, in DZY, the High Court emphasised the breadth of the words ‘just and reasonable’.  Mr Stevens’ state of mind at the time of entering into the deed is relevant.

7. There may be cases where holding an erroneous belief is so unreasonable that it should be accorded little, if any, weight.  This is not such a case.  Mr Stevens was advised by Waller Legal and by Mr Parkinson that the Ellis defence was applicable.  He had no real understanding of the pleadings in his prior claim, which would have shown that the Christian Brothers did not rely upon it. 

8. The Christian Brothers did not offer an indemnity.  I reject the Christian Brothers’ submission that undertaking to maintain the insurance policy is the same as offering an indemnity.  Firstly, there was no undertaking, as I will explain.  More significantly, I have no evidence before me regarding the insurance policy coverage and whether it provided complete indemnity. 

9. I do accept that the Christian Brothers had an applicable insurance policy.  The Christian Brothers provided no details of the policy to Mr Stevens, nor did his solicitors ask for more information.  However, CBP, known to be the solicitors for Catholic Church Insurance, were acting on behalf of the Christian Brothers. 

Analysis

1. Mr Stevens was legally represented during the entirety of his prior claim.  I accept that the Christian Brothers were in a more powerful position than he, as experienced litigants with insurance.  Naturally, this gave them more bargaining power.  The Christian Brothers’ position that Mr Stevens’ legal representation ameliorated the power imbalance is somewhat incongruous.  On the evidence currently before me, Mr Stevens’ legal representation was inadequate.  As the Christian Brothers have contended, and I have accepted above, there is ground for a professional negligence claim against PL. 

2. On the other hand, Mr Stevens did not need to negotiate directly with the Christian Brothers.  His lawyers did this.  Having legal representation somewhat ameliorated the power imbalance when bargaining.  Moreover, it is not the case that the Christian Brothers refused to bargain with Mr Stevens.  There was a range of offers, and, as described, even after the Christian Brothers ‘final’ offer, Mr Stevens’ solicitors were able to bargain for a higher offer successfully. 

3. Weighing the matters above, I assess this factor marginally in favour of setting aside the prior deed.

Mr Stevens’ health, feelings of guilt and shame

1. There is no evidence to suggest, and it was not contended, that Mr Stevens was affected by incapacity impairing his judgment at the time he entered into the prior deed.

Prospects of success and settlement amount

Mr Stevens’ submissions

1. Had it not been for the Ellis defence, there is no reason why Mr Stevens’ cause of action would have failed.  Now the abuse has been admitted, as has the failure to exercise reasonable care.  Likely, the damages recoverable would far exceed $210,000.  Even a modest judgment would be considerably higher than that.

2. Mr Stevens accepted an inadequate settlement sum by the prior deed.  It was a substantial discount in respect of common law damages due to the barriers and uncertainties he faced.  As Keogh J stated in the initial judgment of WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) (‘WCB (first instance)’),[170] ‘[t]he reasonableness of a settlement may be illustrated by changes in the law since it was entered into.’[171]  These changes occurred both during the proceeding and subsequently. 

   [170][2020] VSC 639 (‘WCB (first instance)’).

   [171]Ibid [132]. See also, WCB, [118].

3. The Christian Brothers gained the benefit of negotiating a substantially discounted settlement in 2016.  To protect this discounted bargain is inconsistent with the intended legislative benefits of the amendments to the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) and the LAA.

4. Mr Stevens has suffered serious, long-standing, psychiatric injury.  This injury has reduced his work capacity for decades.  He advanced an economic loss claim, and the parties considered it during their negotiations.  As Irving AsJ observed in DZY v Trustees of the Christian Brothers,[172] it is normal for an economic loss claim not to be developed until late in the proceeding.  In Pearce v Waller Legal, J Forrest J rejected the failure to develop an economic loss claim as a breach of duty for similar reasons.  Here, there is a significant claim for economic loss.

   [172][2023] VSC 124.

5. Mr Stevens’ case is deserving of proper and adequate compensation.  The Christian Brothers’ interest in maintaining the settlement should not weigh heavily on the Court, given that it is protecting a very modest settlement. 

6. Regarding other matters raised by the Christian Brothers that affected Mr Stevens’ health, tort law addresses the apportionment of claims.

7. In reply to the Christian Brothers’ submissions that by 2012, Mr Stevens was feeling better and had been alcohol free for a year: this is irrelevant.  Even if he had made a miraculous recovery, he would still have a powerful claim.  He continued to suffer from a significant psychiatric injury.

Christian Brothers’ submissions

1. The documentary evidence shows that the Ellis defence did not constitute a discounting factor in the quantum of Mr Stevens’ claim at the time it resolved or in the negotiations leading up to it.

2. As outlined above, liability remained in dispute.  Further, there was evidence as to the substantial causative role of unrelated factors upon Mr Stevens’ psychiatric condition and/or work capacity.  These are relevant operative factors that would have reduced the amount of money he received. 

3. Firstly, Mr Stevens made a workplace bullying claim against his former employer in 2006.  He received compensation of $13,834.56, plus costs, as a result of the claim.[173]  Medical reports evidence that he developed a psychiatric condition and numerous symptoms as a result of workplace stressors, including what Mr Stevens described as ‘a deliberate and systematic campaign of bullying and harassment by his employer.’  He described himself as at risk of suicide due to this.  His treating psychologist, Dr David Shapiro, considered his psychological condition to be ‘in stark contrast to his high level of functioning prior’ to the workplace stressors, and that he had major depression and a panic disorder, for which the workplace stressors were a substantial or significant contributing factor.[174]  Psychiatrist Professor Lorraine Dennerstein observed that the workplace stressors had resulted in a stress reaction for Mr Stevens.[175]

   [173]Exhibit ‘CH-1’ to the first Harrison affidavit, 299.

   [174]First Stevens affidavit, [17]; exhibit ‘CH-1’ to the first Harrison affidavit, 155–8, 195, 236, 496, 586–9, 639–53, 722–27; exhibit ‘SMS’ to the first Sheppard affidavit, 258–61.

   [175]Exhibit ‘SMS’ to the first Sheppard affidavit, 261.

4. Secondly, Mr Stevens made a medical negligence claim against his former chiropractor between 2007 and 2011.  He received $170,000 in compensation.[176]  Mr Stevens suffered an acute prolapse of the C4/5 cervical disc, secondary left C5 radiculopathy, left-sided paralysis and impaired mood after his chiropractor twisted his neck and paralysed his arm.  He had to undergo back surgery, and his work capacity was affected.  Mr Stevens commenced drinking alcohol at higher levels in the immediate aftermath of his injury.[177]

   [176]Exhibit ‘CH-2’ to the second Harrison affidavit, 7.

   [177]Exhibit ‘CH-1’ to the first Harrison affidavit, 155–8, 195, 236, 496, 586–9, 639–53, 722–7; exhibit ‘SMS’ to the first Sheppard affidavit, 258–61.

5. Thirdly, Mr Stevens and other family members were abused physically by his younger brother.  His younger brother broke his jaw in about 2001.[178]

   [178]Exhibit ‘SMS’ to the first Sheppard affidavit, 256.

6. Fourthly, Mr Stevens experienced vicarious trauma during the six months he lived in Cambodia in the 1990s, being ‘traumatised by the kidnapping and murder of the people he lived with’.[179]

   [179]Ibid 261, 272.

7. Fifthly, the terminal illness of Mr Stevens’ mother led to a severe stress reaction and a period where he drank heavily.[180]

   [180]Exhibit ‘CH-1’ to the first Harrison affidavit, 214.

8. Sixthly, Mr Stevens had a potential genetic predisposition to alcoholism and substance abuse.  He reported a strong family history of violence and alcohol abuse.  Psychiatrist, Dr Alex Apler, opines that this explains some of the difficulties he has had over the years.[181]

   [181]Ibid 134.

9. This evidence demonstrates why the quantum of settlement in the prior deed was not unreasonably low.  It is distinguishable from other decisions relating to historical abuse at the time.

   Economic loss claim

10. The Christian Brothers concede that Mr Stevens made an economic loss claim.  However, he only provided limited financial records, resulting in an incomplete picture at the time of the prior claim.  There was no evidence of his likely but-for earnings, and his lawyers at that time did not investigate this.  The details that Mr Stevens provided regarding his actual earnings were insufficient.  The position paper and schedule of damages reflect the lack of detail regarding his economic loss claim.  There is no evidence to show how Mr Stevens calculated his claim for economic loss.

11. The Court should infer that the inherently speculative nature of the economic loss claim and lack of supporting evidence influenced the quantum of the prior deed.

12. At the time that Mr Stevens executed the prior deed, there were conflicting accounts of Mr Stevens’ medical condition. In his 2006 report, Dr Shapiro opined that Mr Stevens developed psychiatric conditions in the context of the death of his mother and workplace stressors.[182]  Dr George Jacobs opined in 2009 that the primary presenting issue was alcoholism, with a limited range of other symptoms noted.[183]  Dr Shapiro’s 2012 report opined that Mr Stevens continued to suffer from being sexually abused as a child, with ‘almost no area of his life … not [being] impacted’.[184]  Professor Dennerstein considered that Mr Stevens had developed adjustment disorder, as well as a conduct disorder and polysubstance dependency, the latter two diagnoses having resolved.[185]  Dr Apler opined that Mr Stevens had not developed a psychiatric disorder as a result of the abuse by Best, with his anxiety disorder and associated depression being ‘constitutional in origin’.[186]  On 13 November 2022, Dr Michael Diamond prepared a medico-legal report and diagnosed Mr Stevens with post-traumatic stress disorder (‘PTSD’), persistent depressive disorder, and substance use disorder (in remission), relevant to the claimed injuries.[187]  On 1 May 2024, Dr Timothy Entwisle prepared a medico-legal report.  He diagnosed Mr Stevens with chronic alcohol and substance abuse disorder, narcissistic personality features, and PTSD (largely in remission), relevant to the claimed injuries.[188]  At the time of the prior deed, no expert considered that Mr Stevens had PTSD.  Moreover, Mr Stevens’ psychiatric condition had significantly improved as a result of treatment before executing the prior deed.[189] 

    [182]Ibid 155–8.

    [183]Ibid 161–2.

    [184]Exhibit ‘SMS’ to the first Sheppard affidavit, 253.

    [185]Ibid 264.

    [186]Ibid 278.

    [187]Ibid 304.

    [188]Ibid 318.

    [189]Ibid 264; exhibit ‘CH-1’ to the first Harrison affidavit, 135, 155–9, 161–2.

13. Mr Stevens had a successful career as a journalist and consultant before 2006.  He had functioned at a high level within highly stressful environments, according to his treating psychologist, Dr Shapiro.[190]  From 2006, his work performance was affected by the workplace stressors outlined above, the death of his mother, and a serious back injury.  The back injury led to time off work, reduced hours of work and potentially shortened his working life by up to five years.[191] 

    [190]Exhibit ‘CH-1’ to the first Harrison affidavit, 155–8.

    [191]Ibid 166–7, 170, 741–8.

14. Following Mr Stevens’ cessation of alcohol use in 2012, and medical treatment, he reported to Waller Legal that, at present, life was good.[192]  However, in 2013, he lost consultancy work due to a revenue shortfall.  Waller Legal advised Mr Stevens that this would be difficult to include in his claim since it was unrelated to his psychiatric condition.[193]  At the time of the prior claim, Mr Stevens was able to maintain ‘a stable pattern of functioning’ and be ‘successful in his work’.[194]

    [192]Exhibit ‘CH-2’ to the second Harrison affidavit, 12.

    [193]Exhibit ‘SMS’ to the first Sheppard affidavit, 161.

    [194]Exhibit ‘CH-1’ to the first Harrison affidavit, 136.

Analysis

1. Mr Stevens has a good prima facie case.  The Christian Brothers now admit liability.  The Christian Brothers admit that Best sexually abused Mr Stevens when he was about ten years old.[195]

   [195]Defence [15].

2. I make the following findings for this ruling.  Ultimately, contests in the medical evidence can only be determined at trial. 

3. Mr Stevens’ evidence describes the profound lifelong impact of the abuse.  At the onset of the abuse, he began to wet his bed.  He went from being an intelligent and capable student to one with poor marks.  He was arrested for breaking and entering.  He began drinking heavily to ‘shut off’ from the psychological distress.  During that time, he engaged in significant substance abuse.  He managed to complete a Bachelor of Education, but it took him seven years to do so.  He held many jobs, struggling with stress and pressure at work, and navigating conflicts and authority figures.  In his personal life, he has struggled to trust others and actively created distance and isolation.  In 2022, psychiatrist Dr Diamond diagnosed him with PTSD, persistent depressive disorder and substance use disorder (in remission) relevant to his abuse by Best.[196]

   [196]First Stevens affidavit, [12]–[20].

4. Medico-legal reports show that the abuse caused pain and suffering.  There is a range of opinions in the reports.  I will refer to Dr Diamond’s report as it summarises several reports, and to Dr Entwisle’s more recent report.  It is not for me to determine which psychiatric evidence should be preferred.  It is uncontroversial to say that overall, the evidence shows that the abuse caused severe harm to Mr Stevens in the form of diagnosed psychiatric conditions.  Further, although he experienced other trauma, and there is some divergence amongst the medical opinion as to the impact of that trauma, on balance, the medical opinion shows that the abuse caused a serious adverse impact on Mr Stevens.

5. Psychiatrist Dr Diamond provided a report dated 13 November 2022.  He reviewed the reports of other psychiatrists to date, which describe Mr Stevens’ dysfunctional life at the time, substance use disorder, depersonalisation, severe depression and suicidal thoughts.  Dr Diamond states Dr Apler’s report contains an incorrect reference to a family history of dysfunctional drinking relating to Mr Stevens’ father noting Mr Stevens ‘was emphatic at [the] examination … that this was not the case and that history was relevant to his paternal grandfather whom he never saw.’[197]  Dr Diamond’s opinion about the incorrect reference is consistent with Mr Stevens’ evidence under cross-examination.  As I will discuss below, it is also consistent with what Mr Stevens told Dr Apler.

   [197]Exhibit ‘SMS’ to the first Sheppard affidavit, 299–300.

6. Dr Diamond also refers to the reports of Dr Shapiro dated 3 October 2006 and 25 March 2012.  He notes that Dr Shapiro gave the first report in the context of litigation concerning workplace conflict and opines it is ‘misleading because it does not document the substantial history that relates to the subject sexual abuse.’[198]  Dr Diamond notes the March 2012 report refers to ‘multiple consequences of being sexually abused’ by Best and ‘the profound effects of the consequences of the subject childhood sexual abuse.’[199]  

   [198]Ibid 300.

   [199]Ibid.

7. Dr Diamond reviews the report of Professor Dennerstein dated 17 April 2012, noting it is a comprehensive medicolegal report documenting the extensive substance use disorder history, which had resolved at the time she saw Mr Stevens.  Professor Dennerstein described adjustment disorder with mixed anxiety and depressed mood, but noted Mr Stevens may have met the criteria for major depression and panic disorder in previous times.[200]  Dr Diamond comments that Professor Dennerstein ‘attributed the development of the psychiatric disorders to the substance abuse.  She noted the experience of other trauma later in his life, including experiences in Cambodia and the physical assault by his brother.’[201] 

   [200]Ibid 300–1.

   [201]Ibid 301.

8. Dr Diamond concurs with Professor Dennerstein’s observations about the effect of the abuse on Mr Stevens’ employment history, noting the impact of substance abuse, distrust of people in authority within the workplace and difficulties with interpersonal conflict.[202]

   [202]Ibid.

9. Dr Diamond refers to Dr Apler’s report dated 14 April 2015.  Dr Diamond opines that Dr Apler has de-emphasised the pathological effects of the abuse on Mr Stevens.[203]  He opines that Dr Apler erred by misrepresenting Mr Stevens’ father as a violent alcoholic when Mr Stevens repeatedly denied that was the case, and erred in referring to Mr Stevens’ conduct disordered history being evident before the abuse occurred.[204] 

   [203]Ibid 301–2.

   [204]Ibid 302.

10. In his report, Dr Apler quotes Mr Stevens telling him that both his parents were gentle, and that his paternal grandfather was renowned for his violence.[205]  However, Dr Apler also refers to Dr Jacobs’ report of 8 June 2009, which refers to a strong family history of violence and alcohol.[206]  Dr Jacobs’ report records that both Mr Stevens’ paternal grandfather and father were heavy drinkers.[207]  Dr Apler accepts this, notwithstanding that it is contrary to what Mr Stevens told him.  Dr Apler does not explain this inconsistency.  He opines, ‘[t]hese problems can run in families and this family background can account for at least some of the difficulties’ that Mr Stevens had over the years.[208]

    [205]Exhibit ‘CH-1’ to the first Harrison affidavit, 130.

    [206]Ibid 162.

    [207]Ibid.

    [208]Ibid 134.

11. Dr Diamond disputes Dr Apler’s opinion that Mr Stevens’ anxiety disorder and associated depression are unrelated to the abuse, noting this is at odds with the history given.[209]  As I stated above, it is unnecessary to resolve the inconsistencies in the medical reports at this time.  There is sufficient material, though, to say, on the evidence before me, the Christian Brothers’ contention that the pain and suffering damages were not unreasonably low because of a potential genetic predisposition to alcohol and substance abuse is arguable, but not persuasive.

    [209]Exhibit ‘SMS’ to the first Sheppard affidavit, 302.

12. Dr Diamond refers to the report of psychiatrist and psychoanalyst Ofelia Brozky dated 8 July 2022.  He observes that this report identifies ‘the psychopathology that interfered with normal development following exposure to the subject abuse’ and opines that the influence of the trauma is lifelong.[210]  Further, Dr Brozky refers to Mr Stevens’ experience of trauma in Cambodia, and violence within his family.  Still, she opines, ‘nevertheless, the behavioural disorders and other psychological impacts brought about by his experience of childhood sexual assault will remain as marks of greatest significance.’[211]

    [210]Ibid 303.

    [211]Ibid.

13. Dr Diamond diagnoses Mr Stevens with PTSD caused by the abuse.[212]  He provides a diagnosis of other psychiatric conditions arising from the abuse: persistent depressive disorder, noting he may have previously had major depressive disorder, and substance use disorder (in remission).[213]  Dr Diamond provides a guarded prognosis, noting Mr Stevens remains vulnerable and susceptible to exacerbation of illness, regularly responding negatively to externally triggering stimuli.  Dr Diamond opines that the effects of trauma other than the abuse are secondary to the trauma and PTSD that have been a feature of Mr Stevens’ life since the abuse.[214]  Dr Diamond opines Mr Stevens has been ‘severely disadvantaged with respect to his vocational choices, his capacity to function in the workplace and to advance in his career’ as a consequence of the abuse.[215]

    [212]Ibid 304.

    [213]Ibid.

    [214]Ibid 306–7.

    [215]Ibid 309.

14. Dr Entwisle’s report dated 1 May 2024 diagnoses Mr Stevens with chronic alcohol and substance abuse disorder with narcissistic personality features occurring in that context, which have resolved mainly through treatment, and PTSD, largely in remission.[216]  Dr Entwisle opines that whilst there are multiple causes of Mr Stevens’ psychiatric conditions, the abuse is the main contributing factor.[217]  He opines that the abuse impaired Mr Stevens’ capacity to earn an income in the past, but did not presently impact his earning capacity, and would not do so in the future.[218]

    [216]Ibid 318.

    [217]Ibid 319.

    [218]Ibid 320.

1. I find that Mr Stevens would have received significant damages for pain and suffering had he proceeded to trial.  I agree that the evidence for economic loss at the time of the settlement was light.  Nonetheless, I am satisfied, based on Mr Stevens’ evidence and the psychiatric evidence, that he would have received some damages for economic loss. 

2. The settlement sum of $210,000 was inclusive of costs.  This amount was significantly less than the amount Mr Stevens had sought at the ISC, which was $625,086.33 plus costs.  It is likely substantially less than he would have been awarded had the matter proceeded to trial in 2016.  The settlement amount is likely to be significantly less than what Mr Stevens may be awarded now. 

3. The parties referred to SB v State of New South Wales (‘SB’),[219] GGG v YYY (‘GGG’),[220] and Erlich v Leifer & Anor (‘Erlich’).[221]  In SB, Redlich J awarded the plaintiff $195,000 in general damages and $86,461 for economic loss.[222]  The plaintiff, who was in the care of the State, was removed from foster care and placed with her natural father.  He sexually abused her, and two children were born as a result of the abuse.  In that case, the small amounts for economic loss reflected the findings that the plaintiff would have only worked between the ages of 21 and 25, and then between the ages of 40 and 60, due to child-rearing, and that her work would have been in unskilled employment.[223]  As to general damages, they were affected by an earlier sexual assault by her foster father.  In Erlich, Rush J awarded the plaintiff $300,000 for non-economic loss, $724,428 for past and future economic loss and medical expenses, and $250,000 for exemplary damages.[224]  In GGG, Osborn J awarded the plaintiff $250,000 in general damages and $17,000 in special damages.[225]  These latter two cases are significantly more than the settlement, particularly when it is taken into account that the settlement includes legal costs.

Interests of the parties

[219](2004) 13 VR 527 (‘SB’).

[220][2011] VSC 429 (‘GGG’).

[221][2015] VSC 499 (‘Erlich’).

[222]SB, [662].

[223]Ibid [625]–[627].

[224]Erlich, [239]–[240].

[225]GGG, [5(d)].

Mr Stevens’ submissions

1. In WCB (first instance), Keogh J observed that in determining what is just and reasonable, ‘the Court’s primary concern should be with the circumstances in which the settlement agreement was created, and the consequences for each party if the Court alters rights embodied in the Deed.’[226]  A relevant factor to consider is the potential prejudice to a defendant that may arise from the passage of time if the Court sets aside the prior deed.  Recent High Court authorities on permanent stay applications address the consequence of removing the limitation period in respect of claims of child abuse.[227]  The Christian Brothers bear a heavy onus to establish that they will be prejudiced by the setting aside of the prior deed, akin to the test associated with a permanent stay.[228]

   [226]WCB (first instance), [130].

   [227]See GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Willmot v Queensland (2024) 419 ALR 623; RC v The Salvation Army (Western Australia) Property Trust (2024) 419 ALR 677.

   [228]WCB (first instance), [125].

2. Here, the Christian Brothers will not suffer any relevant prejudice if the Court sets aside the prior deed because they have admitted to the abuse occurring and to breaching their duty of care.  The sole issue remaining to be determined would be an assessment of quantum.  The Christian Brothers have not claimed any prejudice.

Christian Brothers’ submissions

1. The Christian Brothers rely upon the prior deed.  I refer to their submissions already outlined above.

Analysis

1. Mr Stevens made submissions about prejudice.  I prefer to adopt the High Court’s approach in DZY and to focus on each party’s interests.  I have taken into account the admission of liability in considering the settlement amount in the prior deed.

2. Mr Stevens’ interests lie in having the prior deed set aside.  On the other hand, the Christian Brothers’ interests lie in maintaining the prior deed and avoiding the costs and uncertainty of litigation, and this ought be taken into account.[229]  So too, that they paid the settlement monies.[230]  However, the Christian Brothers’ interests are strongly outweighed by the factors in favour of setting aside the prior deed.

   [229]Ibid [201].

   [230]Ibid [203].

Conclusion

1. It is just and reasonable to set aside the prior deed.  Mr Stevens received legal advice that the Ellis defence and limitation period were obstacles to his claim.  His beliefs about the Ellis defence, and to a lesser extent, the limitation period, materially influenced his decision to enter into the prior deed.  The settlement amount agreed in the prior deed is likely significantly less than what a Court would have awarded him in 2016, or may award him today.  These factors significantly outweigh the countervailing factors, namely that it is not in the interests of the Christian Brothers to set aside the deed,  Mr Stevens was legally represented at the time he entered into the deed, and there is ground for a negligence claim against his prior solicitors, PL.  

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