TRG v Board of Trustees of Brisbane Grammar School - [2019] QSC 157

SUPREME COURT OF QUEENSLAND

CITATION:

TRG v The Board of Trustees of the Brisbane Grammar School [2019] QSC 157

PARTIES:

TRG
(applicant)
v
THE BOARD OF TRUSTEES OF THE BRISBANE GRAMMAR SCHOOL
(respondent)

FILE NO/S:

BS No 6267 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2018

JUDGE:

Davis J

ORDERS:

1. Application dismissed.

2. The parties are to be heard on the issue of costs.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – where the applicant reached a settlement agreement with the respondent in 2002 in relation to claims of institutional sexual abuse at Brisbane Grammar School during 1987 and 1988 – where the applicant applied under s 48(5A) of the Limitation of Actions Act 1974 for an order setting aside the settlement agreement – where the Act provides that a court may set aside a previous settlement agreement if it is “just and reasonable” to do so – where the parties disagreed on the meaning and scope of “just and reasonable” under the Act – whether it was just and reasonable for the court to set aside the settlement agreement

Acts Interpretation Act 1954 (Qld), s 14A, s 14B
Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA)
Grammar Schools Act 2016 (Qld)
Justice and Community Safety Legislation Amendment Act 2017 (No 2) (ACT)
Limitation Amendment Act 2017 (Tas)
Limitation Amendment (Child Abuse) Act 2016 (NSW)
Limitation of Actions Act 1974 (Qld)
Limitation of Actions and Other Legislation (Child Abuse Civil Proceedings) Amendment Bill 2016 (Qld)
Limitation of Actions (Child Abuse) Act 2015 (Vic)
Limitation of Actions (Child Abuse) Amendment Act 2018 (SA)
Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41, followed
Bell v SPC Ltd [1989] VR 170; [1989] VicRp 15, cited
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited
Crime and Corruption Commission v Swindells [2009] QSC 409, cited
Dick v University of Queensland [2002] 2 Qd R 476; [1999] QCA 474, cited
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, cited
Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, cited
Hegarty v Queensland Ambulance Service [2007] QSC 90, cited
In re Stuart [1893] 2 QB 201, cited
Jones v Hamersley Resources Ltd [2005] NSWCA 371, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
Makin v Attorney-General for New South Wales [1894] AC 57; [1893] UKPC 56, cited
McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129; [2007] SASC 90, cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, followed
Moriarty v Sunbeam Corp Ltd [1988] Qd R 325, cited
Muir v Franklins Limited[2001] QCA 173, cited
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, cited
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, followed
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45, cited
Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37, followed
Purnell v Medical Board of Queensland [1999] 1 Qd R 362; [1997] QCA 253, followed
R v Dossett (1846) 2 C & K 306; [1846] EngR 889, cited
R v Geering (1849) 18 L.J. (N.S.) (M.C.) 215, cited
R v Gray (1866) 4 F & F 1102; [1866] EngR 21, cited
Rich v State of Queensland & Ors[2001] QCA 295, cited
Sapwell v Lusk & Anor [2010] QSC 344, cited
SAS Trustee Corporation v Miles (2018) 92 ALJR 1064; [2018] HCA 55, cited
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; (2017) 91 ALJR 936; [2017] HCA 34, followed
Unions NSW v New South Wales (2019) 93 ALJR 166; [2019] HCA 1, followed
Walla v State Transport Authority [1985] VR 327; [1985] VicRp 32, cited
Wolters v University of the Sunshine Coast [2012] QSC 298 cited
WAQ v Di Pino[2012] QCA 283, cited
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, cited

COUNSEL:

R J Lynch with J P D Trost for the applicant
J McKenna QC, with K Holyoak, for the respondent

SOLICITORS:

McNamara and Associates for the applicant
Corrs Chambers Westgarth for the respondent

The respondent[1] operates Brisbane Grammar School (the School) which the applicant attended as a student between 1986 and 1989.
[1] A body corporate: Grammar Schools Act 2016.
Kevin Lynch (Lynch) was employed at the School as a counsellor. He was a sexual deviant and sexually assaulted the applicant on numerous occasions in 1986 and 1987.
In 2001 the applicant sued the respondent (the 2001 proceedings) for damages for personal injuries (including psychiatric and psychological damage) suffered as a result of Lynch’s abuse. Those proceedings were settled in late 2002 by written agreement (the settlement agreement) and the applicant was paid a sum of money.
The applicant applies, pursuant to amendments made in late 2016 to the Limitation of Actions Act 1974[2] (the Limitation Act) for an order setting aside the settlement agreement so that he might commence fresh proceedings against the respondent for damages upon causes of action arising from Lynch’s assaults.
[2] Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016.
Background
At the time of Lynch’s offending, the headmaster of the School was Dr Max Howell.[3] Dr Howell held the position of headmaster at the School from 1965 until his retirement. He was responsible for Year 12 students.[4] Others had responsibility for boys in other grades. Dr Howell was also responsible for dealing with any complaints levelled at any member of staff.[5]
[3] Lennox affidavit para [4].
[4] Lennox affidavit para [11].
[5] Lennox affidavit para [17].
Lynch commenced employment at the School on 1 January 1973 as a teacher in History and Economics[6] and became the full time school counsellor in 1977.[7]
[6] Stack affidavit para [9], Abernathy affidavit (Ex DJA-12, p 24).
[7] Stack affidavit para [9], Abernathy affidavit (Ex DJA-13, pp 45, 47, 49 and 51).
Later in 1973 the applicant was born.[8] The applicant commenced at the School in 1986 as a student in Grade 8.
[8] Applicant’s first affidavit, para [2].
The applicant was experiencing difficulties both at home and at school and was counselled by Lynch when he (the applicant) was in Grades 9 and 10. This was in the years 1987 and 1988. Because the applicant’s birthday is towards the end of the year, he was 13 and 14 years of age when he was sexually assaulted by Lynch.
In 1989, while in Grade 11, the applicant left the School.
Lynch resigned his employment at the School in November 1988 so he did not return to the School for the 1989 academic year.[9]
[9] Stack affidavit para [9]; Abernathy affidavit (Ex DJA-12, p 36).
Lynch then took up employment at St Paul’s school in Bald Hills. Dr Howell retired in 1989 and Dr Peter Lennox became headmaster.[10]
[10] Lennox affidavit para [3].
In 1997 Lynch was charged with seven counts of indecently dealing with a student at St Paul’s school.[11] After being criminally charged, he committed suicide.[12]
[11] Abernathy affidavit (Ex DJA-2, p 3).
[12] Abernathy affidavit (Ex DJA-2, p 3).
In mid-2000 allegations began to emerge that Lynch had sexually offended against students of the School while he was employed there:
(i)Newspapers reported in May 2000 that Nigel Parodi, a former student who had gone on a rampage in Chermside shooting police officers before committing suicide had been sexually assaulted by Lynch while a student at the School.[13]
(ii)Newspapers reported that Shine Roche McGowan (Shine) had received instructions to act on behalf of a former student of the School who alleged that Lynch sexually assaulted him.[14]
(iii)On 2 June 2000 Shine gave notice to the School that they were acting for various claimants, not at that stage named.[15] These all made allegations of sexual misconduct against Lynch.
(iv)On 6 June 2000 a former student called in the material BQP emailed Dr Lennox asserting that he (BQP) had been a student at the School between 1976 and 1980 and that in 1979 or 1980 he had been sexually assaulted by Lynch. He further asserted that he had made complaint about the assault to Dr Howell a couple of days after the assault occurred.[16]
[13]    Abernathy affidavit (Ex DJA-2, p 3).
[14]    Abernathy affidavit (Ex DJA-2, p 3).
[15]    Abernathy affidavit (Ex DJA-2, p 3).
[16] Abernathy affidavit, para [78] and Ex DJA-15, p 62.
There was then communication between the School and Shine about, amongst other things, counselling to be provided by or through the School to Lynch’s victims.[17] In the course of that correspondence, Dr Lennox made it clear that the School was not admitting legal liability. In one letter he said:
“The School’s agreement to facilitate this system of counselling arises from the School’s acknowledgement of its moral responsibilities to its former students. It does not in any way, nor should it be construed as, an admission of any legal liability in respect of any matter giving rise to the counselling.”[18]
[17] Abernathy affidavit (Ex DJA-3-DJA-6, pp 6-12).
[18] Abernathy affidavit (Ex DJA-4, p 7).
In a pro-forma letter to former students offering counselling:
“Finally, on behalf of the School, I would like to again express regret in relation to these matters. Although the School does not accept any legal liability for any inappropriate behaviour by Mr Lynch, it does acknowledge its clear moral responsibility to all of its students, both past and present. The decision to facilitate this counselling is, we hope, a sign of the School’s sincerity in meeting that moral responsibility.”[19]
[19] Abernathy affidavit (Ex DJA-4, p 10).
That denial of liability was made, in part at least, upon the understanding of the law at that time as to the School’s vicarious liability or lack thereof for the actions of its employee Lynch.[20]
[20] Rich v State of Queensland & Ors (2001) Aust Torts Rep 81/626 [2001] QCA 295 affirmed on appeal in State of New South Wales v Lepore (2003) 212 CLR 511.
By this stage the respondent had engaged Corrs Chambers Westgarth (Corrs) to act on its behalf in the claims arising from Lynch’s criminal activity. Mr David Abernathy, then a partner of Corrs, had primary conduct of the matters with Ms Julie Cameron. Mr Howard Stack, also a solicitor, was at this time the chairman of the respondent. Corrs’ instructions came from Dr Lennox and Mr Stack.
By early 2001 about 38 students had retained Shine who then began negotiating with Corrs. What was proposed by Shine was a grouping of claimants into categories of extreme, severe or moderate loss and then a group settlement rather than dealing with each case on its merits.[21]
[21] Abernathy affidavit (Ex DJA-23, p 73).
By 28 April 2001 proceedings had been instituted by Shine on behalf of about 50 former students including the applicant.[22] Initially, none of those proceedings were served.[23] Further correspondence then passed between Corrs and Shine.[24] I examine that correspondence later.[25]
[22]    Abernathy affidavit (Ex DJA-24, p 100).
[23] Abernathy affidavit para [108].
[24]    Abernathy affidavit (Ex DJA-25, p 102), Abernathy affidavit (Ex DJA-26, p 104) and Abernathy affidavit (Ex DJA-27, p 138).
[25]    Paragraphs [30]-[34] of these reasons.
On 17 October 2001 proceedings brought by two former students who I shall call AB[26] and CD[27] were served on the respondent.
[26] Abernathy affidavit (Ex DJA-28, p 140).
[27] Abernathy affidavit (Ex DJA-28, p 160).
In due course defences were filed and served, and AB and CD filed and served replies to the defences.[28]
[28] Abernathy affidavit, paras [117-120] (Exs DJA-29, p 177 and DJA-30, p 189).
Of the proceedings commenced by AB and CD, Mr Abernathy says in his affidavit:
“… I inferred at that time that these two claims had been selected by Shine as test cases through which they would seek to demonstrate the strength of their claims, including overcoming any limitation period defence which might be raised.”[29]
[29] Paragraph [118].
That was a fair inference for Mr Abernathy to draw. It was also a sensible approach for Shine to take. While at some stage each case would have to be determined on its particular merits, it was a sensible move to proceed with two of the claims initially so as to test the prospect of overcoming legal obstacles which the claims faced.[30]
[30] The limitation issue and the vicarious liability issue.
Various causes of action were pleaded by AB and CD. Apart from a conventional plea of a claim in tort, the statements of claim alleged causes of action founded in a breach of fiduciary duty, misleading and deceptive conduct and unconscionable conduct.
Importantly, the defences pleaded:
(i)that if Lynch did sexually assault AB and CD he did so without the knowledge of the respondent and did so otherwise than in circumstances where the respondent ought to have known the danger;[31]
(ii)the claims were statute barred by the provisions of the Limitation Act.
[31] Paragraph 14 of the defence of the proceedings brought by CD, Abernathy affidavit (Ex DJA-29, p 187-188).
On 6 February 2002 Corrs filed an application in each of AB and CD’s proceedings. The applications were identical and sought:
(i)that the paragraphs pleading the causes of action other than the case in tort be struck out;
(ii)judgment for the respondent be given on the basis that the limitation defence was unanswerable;
(iii)ancillary and alternative relief.[32]
[32] Abernathy affidavit (Ex DJA-32, pp 195-200).
Shine responded by applications on behalf of both AB and CD for orders pursuant to s 31 of the Limitation Act seeking an extension of the period of limitation.[33]
[33] Abernathy affidavit (Ex DJA-33, pp 201-204).
The applications though were never heard. It was agreed between the parties that the applications should be adjourned to enable a formal mediation to proceed in relation to all of the claims.
Negotiations were then undertaken as to the way the mediations should proceed. In due course prominent Brisbane barrister and expert mediator, Ian Hanger QC, was suggested as the mediator.[34]
[34] Abernathy affidavit, paras [136]-[137] and [149].
On 2 April 2002, Shine provided a proposed framework for the mediations. There were proposals for the appointment of psychiatrists to examine each claimant and timeframes were suggested. The proposal included:
(i)“The settlement of each claim to be conditional upon ‘all’ claims, for which proceedings shall have been issued reaching settlement at mediation (‘all or none’)”; and
(ii)“None of the plaintiffs to attend at the mediation unless it be agreed between the parties that good reason merits the individual plaintiff’s attendance.”[35]
[35] Abernathy affidavit (Ex DJA-38, p 216).
Corrs expressed some views about the logistical proposals and, perhaps unsurprisingly, rejected the two proposals recorded above. It is, with respect, difficult to see how, in the circumstances then existing, Shine could have advised their group of clients that an “all or none” approach was appropriate. There was always the danger that some claimants may have stronger cases than others and therefore a danger those cases would be compromised in order to obtain settlement in others. Similarly, the proposed ban on claimants attending at the mediation seems a very odd suggestion.
On 3 April 2002 there was a meeting with Mr Hanger QC. That meeting was attended by solicitors from both Shine and Corrs and also barristers who had been briefed. Richard Douglas QC[36] and Rebecca Treston of counsel (as Treston QC then was)[37] represented the interests of the claimants and Sidney Williams QC represented the School. Perhaps inevitably Mr Hanger QC was not prepared to mediate on Shine’s proposed “all or none” basis, and was not prepared to mediate unless the claimants were present at their mediations.[38]
[36]    Then Douglas SC.
[37]    I will refer to Treston QC as Ms Treston.
[38]    Cameron affidavit (Ex JPC-2).
By 12 April 2002 the terms of the mediation agreement had been settled. Mr Hanger QC was appointed as the mediator, there were provisions for the disclosure of documents and information, and several clauses that may be regarded as standard and uncontroversial. They need not be recorded specifically here. The agreement contained the following significant clauses:
“3The Defendant[39] pay the mediator’s costs of and incidental to the mediations and confirm to [Shine] it has reached an agreement in respect of those fees within seven days of the date of the signing of this Agreement.
[39]    The respondent in the current application.
…
6Within 28 days of the date of signing this Agreement by each of the parties, the Plaintiffs will provide signed Statements of Loss and Damage to the Defendant in each action.
…
14All psychiatric examinations, by a psychiatrist agreed between the parties, will be concluded by 30 June 2002. Prior to each examination the appointed psychiatrist will be provided with any relevant material including documents referred to in paragraphs 6 to 10 hereof,[40] the parties hereby giving an undertaking to use their best endeavours to ensure all such documents are available prior to examination. In the event any such document is not available prior to examination, such documents are to be provided as and when received by either party, but before the commencement of the mediations, for the psychiatrist’s comment and for the purposes of an addendum to the individual plaintiff’s medical report if appropriate, such addendum to be provided before 30 September 2002.
[40]    The statements of loss and damage and supporting material.
…
16Each party reserves the right to:
16.l     place before the examining psychiatrist any additional material which they consider appropriate; and
16.2     request the psychiatrist address any additional issues which that party considers relevant by 30 September 2002.
…
18The Defendant agrees to meet the costs of and incidental to the psychiatric examination and supply of a report in respect of each of the Plaintiffs, such costs to include travel and accommodation expense for each of the Plaintiffs where appropriate, provided arrangements are agreed prior to the incurrence of the expenses. Should a matter not settle during the mediation process, then such costs in respect of the examination of that Plaintiff will be costs in the cause in the action by that Plaintiff.
…
20No later than fourteen days prior to 30 September 2002:
20.l     the Plaintiffs provide the Defendant with a quantum schedule and an offer of settlement in respect of each claim;
20.2     the parties agree an order in which the claims are to be mediated, failing agreement the matters to be mediated in alphabetical order.
21No later than seven days prior to 30 September 2002 the Defendant provide a quantum schedule and an offer of settlement in respect of each claim.
22At the commencement of the mediations, the Plaintiffs representatives make their submissions on issues common to all claims in respect of liability and limitation of time issues.
23The Defendant’s representatives thereafter follow with their submissions in reply.
24Day one of the mediation process be set aside to accommodate these respective party’s submissions.
25The balance of the three week period, following discharge of the matters referred to in paragraphs 22, 23 24 hereof be allocated to the mediation of the damages and any individual issues in each of the claims in the order determined in accordance with paragraph 20.2 hereof.
26If any claim is not settled, the mediation costs of each party to that proceeding including the mediators fees, for which the defendant has agreed to be responsible pursuant to paragraph 3, will be costs in the cause in that proceeding.”[41] (emphasis added)
[41]    First Arends affidavit (Ex AWA-4).

The number of claimants represented by Shine continued to grow and by the time the mediation agreement was reached there were 64 claimants, including the applicant.[42]
[42] Abernathy affidavit paras [167]-[168].
In his statement of claim the applicant particularised a damages claim[43] of $389,360.[44]
[43] Which included interest.
[44] First Arends affidavit (Ex AWA-1).
On 24 May 2002, pursuant to the mediation agreement, the applicant supplied the respondent with his statement of loss and damage. Perhaps understandably, as these things go, the statement of loss and damage did not exactly match the damages claimed in the statement of claim. However, the claim for past and future economic loss was significantly increased in the statement of loss and damage by comparison to the statement of claim. The economic loss claimed in the statement of loss and damage was based primarily on an assertion that the psychiatric and psychological damage caused by Lynch’s assaults upon the applicant had resulted in him being unable to pursue a career in medicine.
Relevantly, the statement of loss and damage alleged:
“(b)    Particulars of amounts the plaintiff claims for loss of income to date of this statement are:
(i)In the absence of the incident and injury, the plaintiff intended to pursue a career in medicine.
(ii)The plaintiff claims loss of income in the sum of $289,920.95, being the difference between income earned from 1990 to present ($70,079.05) and income he could have earned for the same period as a Medical Practitioner (excluding six years for University) as follows:
(1)1990 - 1996 - the plaintiff would not have been earning an income as he would be required to gain requisite qualifications.
(2)From 1997 to 2002, the plaintiff had the potential to earn approximately $60,000.00 net per year.
(3)The plaintiff had the potential to earn $360,000.00.
(c)     Particulars of any disability resulting in a loss of earning capacity and the amount of any future economic loss claimed are:
(i)The plaintiff was a student at the time of the incidents and injury, intending to complete high school and pursue a career as a Medical Practitioner. The plaintiff is now 28 years of age.
(ii)Having regard to the interference with the plaintiff’s earning capacity to date, which is reflected in the information contained herein, and having regard to the circumstances, the plaintiff’s capacity to earn income will be significantly interfered with.
(iii)The plaintiff claims a sum of $816,527.00 by way of future economic loss calculated for a period of 37 years at the rate of $1,075.00 net per week, using the 5% tables. This amount has been discounted by 15% to take into account the contingencies and vicissitudes of life.
(iv)The weekly rate in paragraph (iii) above reflects the difference between what the plaintiff is earning at present, $125.00 net per week, and what it is anticipated the plaintiff would have been earning in the event of pursuing a career as a Medical Practitioner ($1,200.00 per week).”[45]
[45]    First Arends affidavit (Ex AWA-3).
In due course, the terms of a letter to a psychiatrist, Dr Gary Larder, was settled between the respective solicitors and Dr Larder was retained to examine the applicant.[46]
[46] Abernathy affidavit (Exs DJA-50, p 253 and DJA-52, p 258).
Dr Larder examined the applicant on 5 June 2002 and his report was produced on 15 July 2002.[47] The doctor diagnosed “Chronic Depression, Alcohol and Stimulant abuse, Opioid Dependence and Anxiety Disorder and Severe Personality Vulnerability”.[48]
[47] First Arends affidavit (Ex AWA-5).
[48] Page 5 of the report.
Between July and September 2002, Corrs sought disclosure of further documents and sought non-party disclosure from various entities.[49]
[49] Abernathy affidavit (Ex DJA-55, p 264) and paras [191]-[192], [194], [196]-[199] and [201].
On 17 September 2002, the applicant through Shine made an offer to settle his claim for $150,399 plus costs.[50] A “damages schedule” was attached to the offer to explain how the offer was calculated. That schedule was:
[50] Abernathy affidavit (Ex DJA-64, p 364)

“General damages

$ 30,000.00

Interest (on $20,000.00 at 2% for 15 years)

$    6,000.00

Past Economic Loss (global assessment)

$ 40,000.00

Interest (at 5% for 5 years)

$ 10,000.00

Future Economic Loss

$ 40,000.00

Past Superannuation Losses (7%)

$    2,800.00

Future Superannuation Losses (9%)

$    3,600.00

Past Special Damages

Pharmaceutical expenses - $70.00

Travelling expenses - $1,040.00

HIC refund - TBA

Treatment expenses (Fairhaven Rehabilitation Centre) - $11,700.00

Total - $12,810.00

$    5,000.00

Interest on Past Special Damages

TBA

Future Special Damages (psychiatric costs)

$ 25,000.00

Past Griffiths v Kerkemeyer (claimed at $2,600 but reduced by 30% to 50%)

$    1,820.00

Future Griffiths v Kerkemeyer (claimed at $4,129 but reduced by 30% to 50%)

$    2,890.00

Subtotal

$167,110.00

The amount of $167,110.00 discounted by 10%

Total $150,399.00

Exemplary Damages

………......”[51]

[51]    Abernathy affidavit (Ex DJA 64 at 365).

Of particular significance is the position that the applicant was prepared to adopt in settlement negotiations concerning the claim for past and future economic loss. In stark contrast to the claims made in the statement of loss and damage, the applicant was prepared to accept $40,000 for past economic loss and $40,000 for future economic loss.
Also on 17 September 2002, the respondent became aware of further evidence that Dr Howell had, in the 1980s, acquired some knowledge of Lynch’s sexual predation of boys at the School. BQH was a parent of the boy, BQJ and his brother, also a student at the School. BQH swore a statutory declaration deposing to communications he had with Dr Howell. BQJ was in Grade 8 at the School in 1981. BQJ was born in 1968 and was therefore 13 at the time. BQJ had made complaint to BQH’s wife that Lynch had fondled his penis.[52]
[52] Abernathy affidavit (Ex DJA-69, p 392).
In his statutory declaration, BQH swore that upon BQJ’s complaint, he, BQH, travelled with his wife to the School to speak to Dr Howell. BQH swore this:
“18.    We attended on Max Howell in the morning sometime. I estimate that it would have been approximately 11.00am. My wife waited outside Mr Howell’s office whilst I went in to speak with him.
19.    When I went in to see Howell, I advised him of the purpose of my visit. I told him, ‘My son, BQJ, has told us that Kevin Lynch has been fiddling with his (BQJ’s) penis’.
20.    Howell’s first sentence to me, after hearing my complaint was to say, ‘Are you going to tell the police?’ Howell did not express surprise at hearing what I had said but did seem concerned that I might tell someone else.
21.    I told him that I did not intend to tell the police as I did not think that the offence was as serious as that. However, I told him that l felt that I should tell someone who was in charge of the school. I then said words to the effect, ‘If it was an isolated incident, it is up to you (Howell/the school) to speak with Lynch. If others are complaining as well, I would expect the school to take appropriate action to protect our children’.
22.    I do not think that I asked Howell whether he had had previous complaints made about Lynch.
23.    Howell’s attitude remained non-committal. In response to my statements, he said words to the effect, ‘Yes. Righto. Thanks for telling me’. He indicated that he would look into the matter. He then engaged in some pleasantries about how my sons were going generally. The meeting was all over in about five minutes.
24.    I am not aware of any follow-up of the matter. I was never contacted by Howell about this subject again. In fact I had no direct contact with Howell during the rest of my sons’ schooling at Brisbane Boys Grammar.”
In his affidavit sworn in April 2002,[53] Dr Howell, when dealing with allegations of BQP,[54] said:
“8       At no time did I ever receive any complaint from students, staff, parents or any other person, in relation to Kevin Lynch’s behaviour or counselling techniques. Had I done so, I would have investigated those complaints and if the type of behaviour now alleged was established, then his contract of employment would have been terminated immediately and the matter reported to the appropriate authorities.
9       There was an occasion in 1969 when I received a report from a parent of alleged sexual misconduct by a teacher. It was not alleged the misconduct directly involved students. I immediately put the allegation to the teacher, who admitted the allegation and resigned immediately. Had the teacher not resigned his employment would have been immediately terminated.”[55] (emphasis added)
[53]    Abernathy affidavit (Exs DJA-105, p 780 and DJA-112, p 822).
[54] Referred to in these reasons at para [13].
[55]    Abernathy affidavit Ex DJA-112, p 824-5.
When the allegations concerning BQJ arose, the School’s insurers were informed and reacted badly by withdrawing their agreement (previously obtained) to contribute to settlements.[56] That position was altered by the insurers after a meeting attended by representatives of the school and Dr Howell. An inference can be drawn that Dr Howell communicated to the insurers his denial of the allegations made by BQH. In the end though I doubt whether any admissible evidence can be drawn from that meeting as to the knowledge or otherwise which Dr Howell had, at any time before the applicant was assaulted by Lynch, of any allegations made by other students against Lynch.
[56] Abernathy affidavit, para [220].
On 23 September 2002, Mr Douglas QC and Ms Treston produced a written advice to Shine as to both prospects and quantum of the applicant’s claim.[57] It is necessary to examine that advice in detail and I do so later.[58] For now it is sufficient to note that the range of damages suggested was $95,565 to $167,100 and because of difficulties in proving liability (including overcoming limitation issues), a discount of between 40% and 50% was thought to be appropriate in any settlement negotiations. Therefore, applying a 50% reduction to the lower figure and a 40% reduction to the higher figure, a range of $47,782.50 to $100,260 is produced.
[57] Applicant’s second affidavit, Ex 1.
[58] Paragraphs [221]-[225] of these reasons.
Arrangements had been made that Mr Hanger QC would meet each claimant before the mediation began.[59] The applicant does not in his affidavit mention such a meeting but it is clear from his first affidavit that he does not have a complete and detailed recollection of the mediation process.[60] This is, with respect, understandable. He has had difficulties in his life and by the time of the mediation he had been diagnosed by Dr Larder as suffering, amongst other serious conditions, chronic depression. Ms Cameron in her affidavit deposes to conversations she had with Mr Hanger QC from which it is clear that he intended to speak to all complainants and that by 25 September 2002 he had spoken to eight, although none of those were the applicant.[61] It is I find, more likely than not, that the applicant did meet with Mr Hanger QC prior to the mediation.
[59]    Cameron affidavit paras [26]-[28].
[60]    Applicant’s first affidavit, paras [35]-[38].
[61]    Cameron affidavit paras [26]-[29] (Ex JBC-4).
The mediation was by any standard a sophisticated process. There was significant preparation.[62] An opening session was held on 30 September 2002.[63] No claimants were present at this session. Apart from Mr Hanger QC, the participants were Mr Douglas QC and Ms Treston, who along with solicitors of Shine represented the claimants, Mr Williams QC with his junior Mr Holyoak and solicitors from Corrs, Mr Stack, Dr Lennox, and solicitors representing the various insurers of the respondent. At this session, Mr Douglas QC for the claimants and Mr Williams QC for the School put their respective positions.[64] It is necessary to analyse the detail of what was said in that session later.[65]
[62]    See paragraph [33] of these reasons as to what was anticipated by the mediation agreement.
[63] Cameron affidavit para [31].
[64]    Abernathy affidavit, para [227]-[239].
[65]    Paragraphs [209]-[215] of these reasons.
After the initial session, individual mediations commenced. By this point, there were issues with the respondent’s insurers and the respondent was unsure as to whether it would be indemnified. Therefore, no offers were made before the mediation commenced but Corrs told Shine that settlements could be reached subject to indemnity or the raising of funds from some source independently of the insurers.[66]
[66] Cameron affidavit para [35].
There is some conflict of evidence as to what occurred at the mediation of the applicant’s claim which was conducted on 7 October 2002. The solicitors from Corrs instructing Mr Williams QC and Mr Holyoak were Mr Abernathy and Ms Cameron. The defence was divided into two teams: Mr Williams QC with Mr Abernathy and Mr Holyoak with Ms Cameron. One of those teams attended every mediation.[67] It was Mr Holyoak and Ms Cameron who represented the School in the applicant’s mediation.[68]
[67] Abernathy affidavit para [242].
[68] Abernathy affidavit para [242].
Ms Cameron kept detailed notes of the mediation of the applicant’s claim.[69] As already explained, the applicant’s memory of the mediation is compromised by reasons that are understandable. Where Ms Cameron’s version of events[70] differs from the applicant’s, I accept Ms Cameron’s version.
[69] Cameron affidavit paras [62]-[85] (Ex JBC-9).
[70] With her memory refreshed by her notes.
Ms Cameron’s recollection of the applicant’s mediation, as refreshed by her file notes, is:
“66     My recollection is that the most significant issues discussed in this mediation were causation and quantum. In accordance with our instructions, the fact of the abuse or the extent of the abuse was not challenged by BGS.[71]
67     Dr Larder’s report, which is exhibit ‘AWA5’ to the affidavit of Abraham William Arends sworn on 25 June 2018, stated ‘There is considerable evidence that this condition could have resulted from many other life experiences.’
68     The focus of submissions made by [Ms] Treston on the Applicant’s behalf was therefore on establishing causation. For example, my file note records that she made submissions that the Applicant and his siblings all faced the same prejudicial issues in life, and yet the Applicant’s siblings ‘have done OK’ while the Applicant had not. It was submitted that the differentiating factor was Lynch.
69     The Applicant and his mother both contributed to the discussion.
70     The Applicant made comments as I recorded in my notes and disputed the accuracy of some of the matters recorded in Dr Larder’s report (as to his reporting to Dr Apel).[72]
71     I believe the Applicant ‘said his situation (‘not a pretty picture’) was much poorer than that of siblings’.
72     The reference in the last sentence of my file note to ‘reporting’ was a reference to the Applicant’s statement that he had not told Dr Apel anything and that he had written about the abuse in a letter to his father.
73     I cannot recall any mention being made of limitation issues during the Applicant’s mediation.
74     I cannot recall whether the parties split up into individual rooms during the Applicant’s mediation and my file note does not record this occurring.
75     To the best of my recollection, no offer was made by BGS at the mediation.”[73]
[71]    A reference to the School.
[72]    A transactional analysis therapist.
[73]    Cameron affidavit paras [66]-[75].
After each mediation, the claimant would be escorted to a different room for what was described as an “apology session”. No lawyers were involved in this, just the claimant, any support person and Mr Stack and Dr Lennox on behalf of the respondent. The process was described by Mr Stack[74] in these terms:
[74]    Who has no recollection of the applicant’s apology session: Stack affidavit paras [42]-[43].
“30     Each mediation comprised two parts: the first part was the formal mediation attended by each claimant and involving lawyers for both parties, and the second part was the private apology session.[75] I did not attend the formal mediation session in any of the claims.
[75]    This is other evidence of a joint session involving lawyers and not claimants; see paragraph [33] and [49] and [209]-[215] of these reasons.
31       I participated in each apology session with Dr Peter Lennox and, on occasions, with the then school counsellor Kerryn Hurd.
32       There were no time constraints on any apology session. The length of the apology sessions varied considerably, with some lasting for well over an hour.
33       Prior to each apology session, I would review the claimant’s personal record sheet and the psychiatric report prepared for the mediation. This provided me with some background information about each claimant so that I could better engage with them on a personal basis during the apology session. I did not have those documents with me during the apology session as I wanted to engage with the claimant without the distraction or concern they might cause.
34       At the start of each apology session, a representative of Shine would show the claimant into the room, almost invariably with a support person such as their spouse, partner, parent or friend. Sometimes the Shine representative would stay for the apology session, and other times they would not. There was no hard and fast rule either way.
35       After introductions, Dr Lennox and I started each session by expressing our dismay at what had happened, apologising to each claimant personally, and on behalf of the school, for what had happened to them while he was at BGS. We then invited each of them to tell us about his time at the school, the impact the abuse had on his life, and what he believed he needed to help him get his life back on track. Peter Lennox and I would let each claimant give us as much or as little information as he was comfortable with.
36       In addition to our apology, Dr Lennox and I advised each claimant that BGS would agree compensation with him, plus ongoing counselling as needed and for as long as it was needed.
37       During each apology session, I also specifically raised with each claimant the conflicting evidence available to us as to whether BGS had been aware of the abuse by Lynch while he had been employed, because there was, understandably, a high degree of anger amongst the claimants. Most claimants believed BGS was aware of the abuse and chose to sweep it under the carpet. I thought it was important to address this issue because I did not want the claimants to leave with the impression that BGS was not prepared to confront this issue.
38       I also explained during each apology session the difficulties BGS was having with its insurers and that this inevitably had constrained our public response to the claims.
39       Many, if not most, claimants wanted to know what policies and procedures had since been put in place to prevent what had happened to them from happening to students in the future. Dr Lennox would explain how the culture of the school was now very different from what it was when the claimant attended, and Dr Lennox would generally talk about the system of pastoral care that had since been put in place for students. He would also invite each claimant to come back and visit the school if and when he was comfortable to do so, and that he would personally conduct such a tour.
40       While I found the apology sessions difficult, and many of them harrowing, I thought they were extremely important because, first and foremost, it was morally the right thing to do. Secondly, I wanted each claimant to know that BGS intended to support them through compensation and ongoing counselling.”[76] (emphasis added)
[76]    Stack affidavit.

Dr Lennox took notes of the apology session with the applicant. He recalls the apology session but it is obvious that he has little recollection of the content of the conversation beyond his note. The content is not of great importance. He says in his affidavit though:
“My best recollection is that the Applicant was engaged and responsive during the apology session. I recall he spoke freely during the session, as is recorded in my file note.”[77]
[77] Lennox affidavit, para [38].
Mr Abernathy’s recollection is that “very few if any, claims settled during the actual mediation”.[78] The applicant’s claim did not settle at mediation. After the mediation process was completed, negotiations continued. Mr Abernathy, in consultation with Ms Cameron, conducted the negotiations with Mr Morrison of Shine.[79]
[78] Abernathy affidavit, para [249].
[79] Abernathy affidavit, paras [250] and [251].
Ultimately the claim settled for the sum of $47,000 plus costs calculated on the District Court scale and a written settlement agreement was signed.[80] It is that settlement agreement which the applicant seeks to have set aside.
[80] Applicant’s affidavit, Ex 1.
The settlement agreement contained three recitals:
“A.     The Plaintiff was a student at Brisbane Grammar School (‘the School’).
B.     The Plaintiff was abused at the School as a result of which the Plaintiff has issued Supreme Court proceedings [redacted] against the Trustees (‘the Proceedings’).
C.     The Plaintiff has agreed to settle the Proceedings and to give the release and indemnity referred to below on the terms set out in this Agreement.”
It then provided for the payment of the settlement sum on various conditions. It recorded an apology by the respondent and the School and contained fairly standard clauses giving a release and indemnity and a bar to future action:
“4.1 Upon payment as referred to in paragraphs 1.1 and 1.4 the Plaintiff releases, indemnifies and forever discharges the Trustees (including past, present and future Trustees), the School, its past, current and future employees and agents from all claims, actions, causes of action and demands of any nature whatsoever which the Plaintiff has now or may have at any time in the future arising out of the subject matter of the Proceedings, any matters referred to in the joint psychiatric report prepared for the purpose of the Mediation before Mr Ian Hanger QC, any failure by the Trustees or the School to provide education or counselling, any bullying or abuse by staff or students of the School or any failure by the Trustees or the School to deal with bullying.
5.1 This Agreement may be pleaded as a bar to any claims, actions, causes of action, demands or legal proceedings instituted by any party in respect of any matter whatsoever referred to in this Agreement except for any proceedings instituted for breach of this Agreement.”
There was a provision:
“7.2 The parties also acknowledge they are aware that they or their legal advisors, agents or servants may discover facts different from or in addition to the facts that they now know or believe to be true with respect to the subject matter of this Agreement and that it is their intention to fully, finally and absolutely settle according to the provisions of this Agreement all claims, liabilities, disputes and differences as provided by this Agreement.”[81]
[81] Applicant’s first affidavit, RT 1. There were other provisions to which I need not refer.
There is little evidence as to the details of the negotiations which were conducted after the mediation and which led to the settlement. What there is comes from Mr Abernathy.
There is a file note[82] evidencing offers being exchanged on 7 October 2002 (the day of the mediation) of $98,000 plus costs on the District Court scale[83] and a counter offer from the respondent at $35,000 plus costs on the Magistrates Court scale.
[82] Abernathy affidavit (Ex DJA-73).
[83] On behalf of the applicant.
There is a document which Mr Abernathy says is a schedule which he used to keep track of offers and counter offers made in all of the claims.[84] That shows an offer by Mr Morrison of $75,000 (presumably with costs) but is undated.[85]
[84] Abernathy affidavit (Ex DJA-74).
[85] Abernathy affidavit, para [254].
On 18 October 2002, Corrs sent a letter to Shine concerning several of the claims including the applicant’s. The letter included this paragraph:
“I will set out below details of signed settlement agreements which I will enclose with this letter. The signed settlement agreements are a combination of matters where we had reached agreement in principle, matters where we have accepted your last offer, matters where we have split the difference between yours and our last offer and other matters where we have made an offer to the limit of instructions. On that basis we enclose settlement agreements in the following matters:”[86]
[86] Abernathy affidavit (Ex DJA-75, p 451).
On the second page of the letter appears the applicant’s name and beside the name Mr Abernathy has written “46½”. Having regard to the paragraph in the letter set out above, Mr Abernathy was of the view that the applicant’s claim had been settled “in principle” by an acceptance of an offer to settle for the sum of $46,500 plus costs. Enclosed with the letter was a settlement agreement executed by the respondent agreeing to settle at that sum.[87] It may be that there was no agreement but Mr Abernathy “split the difference” between offers which are not recorded. It is clear that these records are sketchy.
[87] Abernathy affidavit, para [255] (Ex DJA-76, p 455).
There was obviously some confusion between the solicitors as Shine clearly did not think that agreement had been reached on the applicant’s claim. On 24 October 2002, Shine sent a letter to Corrs offering to settle the claim for $49,000 plus costs.[88]
[88] Abernathy affidavit (Ex DJA-77, p 458 at 459).
On that same day Corrs sent a letter to Shine enclosing a settlement agreement signed by the respondent agreeing to pay $47,000 plus costs on the District Court scale.[89]
[89] Abernathy affidavit, para [257] (Ex DJA-78).
The exact mechanism by which the figure of $47,000 was settled upon is somewhat of a mystery. Mr Abernathy kept different schedules showing the offers being made by the applicant and the respondent. I have already referred to the schedule which mentions an offer from Mr Morrison of $75,000. Another schedule[90] shows offers being made by the applicant of $98,000, $75,000, $65,000, $51,000 and $49,000. The same document shows offers being made by the respondent of $35,000 plus costs on the Magistrates Court scale, $42,000 plus costs on the District Court scale and then shows “settlement” at $47,000.[91] The schedules cannot be regarded as a complete record of all offers made. There is no notation of an offer of $46,500 (even though the respondent actually signed a settlement agreement in those terms) and splitting the difference between $49,000.00 (the previous offer from the applicant) and $42,000.00 (the respondent’s offer), does not give $47,000.00.
[90] Abernathy affidavit (Ex DJA-79).
[91] Abernathy affidavit, para [258] (Ex DJA-79, p 463 at 465).
There is no evidence of what was discussed between Mr Abernathy and Mr Morrison except for Mr Abernathy’s limited recollections as deposed in his affidavit and the documents exhibited thereto.[92] No affidavit of Mr Morrison (or any other representative of Shine) was in evidence before me and there are no documents from Shine except those which were sent to Corrs during the litigation and which are exhibited to Mr Abernathy’s affidavits. Shine’s files have probably been destroyed.[93] However, Mr Abernathy swore in his affidavit “My recollection is that during my negotiations with Simon Morrison, the liability and limitation period issues were not further agitated between us”.[94]
[92] Abernathy affidavit paras [253]-[260].
[93] Abernathy affidavit, paras [24]-[33] (Ex DJA-1).
[94] Abernathy affidavit, para [251].
The settlement agreement is dated 17 October 2002 but the applicant’s claim appears to have been settled in principle on 24 October and the agreement signed by the respondent on that day. The signed document was not returned to Corrs until 9 December 2002[95] and the settlement sum was paid on 20 December 2002.[96] Costs were ultimately agreed at $12,000 and that sum was also paid leading to the proceedings being discontinued by the filing of a notice of discontinuance on 10 January 2003.[97]
[95] Abernathy affidavit, para [261].
[96] Abernathy affidavit, para [262] (Ex DJA-81).
[97] Abernathy affidavit, paras [262]-[265] (Ex DJA-82).
Dr Howell passed away on 8 August 2011.[98]
[98] Abernathy affidavit, para [268].
In 2012, the Commonwealth government announced an intention to establish a Royal Commission into institutional responses to child sexual abuse. That Royal Commission was established and it conducted extensive investigations including many weeks of public hearings.
The applicant provided a statement to the Royal Commission[99] and gave evidence in hearings of the Commission in what became known as “Case Study 34”. Those hearings were conducted in November 2015.[100] While the applicant participated in the mediation and in the apology session, the Royal Commission provided the applicant with his first opportunity to give evidence about Lynch’s criminal assaults upon him. The applicant’s evidence was accepted by the Royal Commission.
[99] Applicant’s first affidavit (Ex 2).
[100] Applicant’s first affidavit (Ex 4, p 83).
In his statement to the Royal Commission the applicant said this:
“44. I believe that the statute of limitations should be removed for victims of child sexual abuse offences wanting to claim damages. It makes no sense to me why a person can be charged for child sexual abuse offences that happened 20 years ago but their victim can't make a claim for damages.”[101]
[101] Applicant’s first affidavit (Ex 3, p 9).
That view of the applicant’s was widely held and in one of the Royal Commission’s interim reports entitled “Redress and Civil Litigation Report” delivered in September 2015, the following recommendations appeared:
“Limitation periods
85.    State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child .
86.    State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.
87.    State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.
88.    State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented.”
Those recommendations were acted upon by the Queensland Parliament in 2016.[102] That resulted in the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016 which was enacted (as amended) in November of that year. That Act effected the amendments to the Limitation Act pursuant to which the present application is brought.
[102] The legislative history is analysed at paragraphs [99] to [130] of these reasons.
While various of the other State and Territories have enacted legislation[103] consistently with the Commission’s recommendations on limitation periods, none have enacted provisions like s 48 of the Queensland Limitation Act, except the Northern Territory. By the Limitation Act 1981 (NT) as amended by the Limitation Amendment (Child Abuse) Act 2017 (NT), limitations on actions for damages arising from child sexual abuse were removed.[104] By s 54 the court may set aside certain judgments on previous actions arising from child sexual abuse if it is just and reasonable to do so. “Judgments” include “settlements” of those claims.[105]
[103] Limitation Amendment (Child Abuse) Act 2016 (NSW); Limitation of Actions (Child Abuse) Act 2015 (Vic); Limitation of Actions (Child Abuse) Amendment Act 2018 (SA); Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA); Limitation Amendment Act 2017 (Tas); Justice and Community Safety Legislation Amendment Act 2017 (No 2) (ACT).
[104] s 5A.
[105] s 53(2).
In December 2015, solicitors (not Shine and not the solicitors acting in the present application) wrote to Mr Stack advising that the applicant had given evidence at the Royal Commission and that he was still suffering the effects of Lynch’s abuse of him. The letter inquired of the preparedness of the respondent to make a financial contribution to the applicant’s ongoing treatment expenses. Mr Abernathy spoke to the solicitor then acting for the applicant and subsequently sent an email in these terms:
“[The respondent] is prepared to consider assisting [the applicant] with ongoing counselling/treatment. In the first instance, it was agreed you would obtain details of the treatment which he is presently receiving, and the impact of private insurance/Medicare refund, so that [the respondent] can consider the matter further.”[106]
[106] Abernathy affidavit, paras [271]-[274] (Exs DJA-83 and 84).
No response was received by Mr Abernathy to that email.[107]
[107] Abernathy affidavit, para [275].
The present application was filed on 14 June 2018.
The statutory provisions
Part 2 of the Limitation Act prescribes periods of limitation which apply to different classes of action. Generally, actions in contract and tort must be commenced within six years of the date of the cause of action arising.[108] The limitation for personal injuries actions is prescribed by s 11. That section prescribes a limitation period of three years and is in these terms:
“11        Actions in respect of personal injury
(1)      Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.
(2)      However, a right of action relating to personal injury resulting from a dust-related condition is not subject to a limitation period under an Act or law or rule of law.
(3)      To remove any doubt, it is declared that personal injury resulting from a dust-related condition does not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.
(4)      In this section—
dust-related condition see the Civil Liability Act 2003, schedule 2.”
[108] s 10.
Here there is little doubt that but for the 2016 amendments, any cause of action which the applicant had against the respondent had become statute barred before the year 2000 revelations about Lynch.
A cause of action which has become statute barred may be saved by order of the court under s 31 which provides:
“31 Ordinary actions
(1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3)This section applies to an action whether or not the period of limitation for the action has expired—
(a) before the commencement of this Act; or
(b)before an application is made under this section in respect of the right of action.”
By the 2016 amendments, s 11A was added to the Act. It is in these terms:
“11A     No limitation period for actions for child sexual abuse
(1)      An action for damages relating to the personal injury of a person resulting from the sexual abuse of the person when the person was a child—
(a)may be brought at any time; and
(b)is not subject to a limitation period under an Act or law or rule of law.
(2)      This section applies whether the claim for damages is brought in tort, in contract, under statute, or otherwise.
(3)      This section applies to an action for damages—
(a)arising under the Civil Proceedings Act 2011, section 64; or
(b)that has survived on the death of a person for the benefit of the person’s estate under the Succession Act 1981, section 66.
(4)      This section does not limit—
(a)any inherent, implied or statutory jurisdiction of a court; or
(b)any other powers of a court under the common law or any other Act (including a Commonwealth Act), rule of court or practice direction.
Example—
This section does not limit a court’s power to summarily dismiss or permanently stay proceedings if the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.”
Section 48 is a transitional provision in these terms:
“48 Transitional provision for Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016
(1) Section 11A applies to an action for damages whether the right of action accrued before or after the commencement of that section (the commencement).
(2)      An action on a previously barred right of action may be brought even if—
(a)a limitation period previously applying to the right of action has expired; or
(b)another action has been started in the right of action but not finalised before the commencement; or
(c)another action was started in the right of action and discontinued before the commencement; or
(d)a judgment was given in relation to the right of action on the ground that a limitation period applying to the right of action had expired; or
(e)an action in the right of action was dismissed on the ground that a limitation period applying to the right of action had expired.
(3)      If an action on a previously barred right of action is brought after the commencement, the court hearing the action may, if the court decides it is just and reasonable to do so, do either or both of the following—
(a)set aside a judgment given in relation to the right of action on the ground that a limitation period applying to the right of action had expired;
(b)take into account any amounts paid or payable as damages or costs under the judgment.
(4)      The Supreme Court may, on application, set aside a judgment under this section even though the Supreme Court is not hearing the action.
(5)      However, a court, other than the Supreme Court, may not set aside another court’s judgment under this section.
(5A)    An action may be brought on a previously settled right of action if a court, by order on application, sets aside the agreement effecting the settlement on the grounds it is just and reasonable to do so.
(5B)    If a court makes an order under subsection (5A) for a previously settled right of action—
(a)each associated agreement is void despite any Act, law or rule of law; and
(b)a party to an associated agreement voided under paragraph (a) may not seek to recover money paid by, or for, the party under the agreement.
(5C)    However, a court hearing an action on a previously settled right of action may—
(a)when awarding damages in relation to the action—take into account any amounts paid or payable as consideration under an associated agreement voided under subsection (5B)(a); and
(b)when awarding costs in relation to the action—take into account any amounts paid or payable as costs under an associated agreement voided under subsection (5B)(a).
(6)      In this section—
associated agreement, for a previously settled right of action, means—
(a)the agreement effecting the settlement; or
(b)any other agreement, other than a contract of insurance, related to the settlement.
previously barred right of action means a right of action for an action to which section 11A applies that was not maintainable immediately before the commencement because a limitation period applying to the right of action had expired.
previously settled right of action means a right of action for an action to which section 11A applies that was settled before the commencement but after a limitation period applying to the right of action had expired.”

Here, there is no dispute that the applicant’s cause of action falls within s 48(5A) so the only real issue is whether he can establish that it is “just and reasonable” to set aside the settlement agreement.
The submissions of the parties
A significant difference between the parties is as to the width of the discretion bestowed by the words “just and reasonable” in s 48(5A). Therefore a matter in dispute is as to what factors are and are not relevant for consideration in exercise of the discretion.
The applicant’s position was expressed by Mr Lynch in his first written submission in these terms:
“… The applicant has identified the following matters as relevant in the present case:
(a)The applicant qualifies for consideration under the section.
(b)The impact of the expired limitation period on the applicant’s decision to settle.
(c)The respondent’s reliance on the expired limitation period in negotiating the Settlement.
(d)The circumstances in which the Settlement was agreed, including access to advice and relative bargaining positions.
(e)The value of the Settlement, including whether it was objectively a reasonable amount at the time ignoring the expiry of a limitation period.
(f)The viability of the applicant’s present-day action, including:
(i) the anticipated liability of the respondent;
(ii) the minimum quantum of likely damages.
(g)The fact that the law now provides that no limitation period applies to victims of child sexual abuse.”[109]
[109] Considered further at paragraph [152] and following of these reasons.
Mr Lynch went on to submit (and I am adopting the lettering of the paragraphs in the primary submissions set out above):
(a)The applicant qualifies for consideration under the section. By that Mr Lynch meant that the applicant fulfilled the prerequisites for consideration of the exercise of the discretion in his favour. So much may be accepted.
(b)The applicant decided to settle his claim, for a discounted sum because of fears of a successful limitation defence.
(c)The defendant did, in the 2002 negotiations, rely upon the limitation defence.
(d)The mediation process was fairly conducted but (and seemingly in substantive contradiction of identification of this as a relevant condition) “… the respondent’s otherwise exemplary conduct of 2002 in organising and facilitating a mediation process to settle a large number of sexual abuse claims brought against it is largely irrelevant to the discretion to be exercised by this court”.[110]
(e)The settlement figure of $47,000 was not a reasonable settlement disregarding limitation considerations.
(f)The applicant now has a good claim[111] for damages in an amount of about $900,000.
[110] Applicant’s written submissions at [40].
[111] In the context of the High Court’s decision in Prince Alfred College Inc v ADC (2016) 258 CLR 134.
As to primary submission (g), Mr Lynch submitted:
“62. As noted by Mr Ian Walker in Parliamentary debate related to s 48(5A), ‘if we did not take steps to ensure that people who had entered into time barred claim related deeds also had the same rights that we have now given to claimants who did not exercise their rights, we would be creating a level of inequality that is not justified.’
63. The applicant should not be disadvantaged as compared with those victims of childhood sexual abuse who took no action in the past. This court should not deny him the rights now granted to other victims, merely because he felt compelled, at a time his rights were weaker than they are now, to accept some nominal compensation for his substantial psychiatric injury suffered when he was a young student at the respondent’s school.”[112]
[112] First written submissions, paras 62 and 63.
While Mr Lynch said in one part of his written submissions that s 48(5A) “provides for a very broad and unfettered discretion”,[113] his submissions were in fact quite to the contrary.
[113] Reply submissions, para 14.
Mr Lynch submitted that the primary intention of the legislature was to place claimants in a position as if they had not brought and settled claims. Therefore, he submitted:
(i)the fairness or otherwise of the mediation in 2002 is irrelevant beyond what he called the “procedural fairness threshold”. By that he meant that if there is “coercing or bullying” in the settlement process, that conduct would generally be fatal to a respondent’s case. But if not (and the so-called threshold is met), any other consideration of the fairness of the mediation process is irrelevant;[114]
(ii)the reasonableness of a settlement is relevant, but a settlement which was affected by a limitation consideration cannot seemingly otherwise be just and reasonable;[115]
(iii)it is irrelevant that the parties intended to finally settle the claims in 2002;
(iv)procedural and substantive unfairness to the respondent is irrelevant to the present application;
(v)the fact that costs were thrown away in the 2002 action is irrelevant;
(vi)the fact that there had been offers to fund counselling in the future is irrelevant.
[114] Paragraph 22 of the reply submissions.
[115] Reply submissions, paras 33 and 35.
Mr Lynch’s submission was not that unfairness to the respondent is irrelevant for all purposes, but just irrelevant to the present application. He pointed to s 11A(5) of the Limitation Act which preserves the court’s inherent powers which, he submits, would empower the court to stay proceedings if the prejudice to the respondent was such that the prosecution of the claim once the settlement agreement was set aside constituted an abuse of process. He then submitted that it was irrelevant to consider prejudice to the respondent when considering whether it was “just and reasonable” under s 48(5A) to set aside the settlement agreement. That unfairness would be legitimately considered, so Mr Lynch submitted, on some later application brought by the respondent to stay the new claim once it had been filed.
The submission, if accepted, would lead to extraordinary, if not perverse, results. A judge hearing an application such as the present may form a view that any future proceedings would constitute an abuse of process because of irremediable unfairness to a proposed defendant, but be obliged, by other factors, to hold that it was just and reasonable to set aside the settlement agreement to enable the new proceedings to be commenced and prosecuted. Then another judge would be asked to find that proceedings which have been commenced upon a finding that it was “just and reasonable” to set aside a settlement agreement should be stayed because prosecution of the proceedings constituted an abuse of process. I reject the submission.
The upshot of Mr Lynch’s submission is that the critical issue was whether the settlement agreement was in some way influenced by the limitation defence. Once that point is reached, those settlements “should in most circumstances be set aside”.[116]
[116] Applicant’s written submissions, para 29.
For reasons later explained,[117] the applicant’s submissions are flawed as they fail to appreciate the significance of three critical aspects of s 48(5A), namely:
(i)the starting point is that there is a binding settlement agreement which defines the rights and obligations of the parties;
(ii)the issue then is whether that state of affairs ought to be disturbed;
(iii)on a proper construction of s 48(5A), in deciding whether it is “just and reasonable” to do so, both parties’ interests are considered. The question is whether it is “just and reasonable” balancing the interest of both parties to set the settlement agreement aside.
[117] Paragraphs [131] to [160] of these reasons.
The respondent’s submissions can be summarised as:
(i)The starting point is the settlement agreement which is a binding contract entered into by the parties to finally determine their rights.
(ii)Given that the legislature, in enacting s 11A of the Limitation Act, has determined that limitation periods ought not apply to proceedings brought to recover damages for sexual assault against children, the purpose of the transitional provision (s 48(5A)) is to give some relief, consistently with s 11A, to claimants who entered into unfair settlements before the amendments.
(iii)Section 48 does not evidence a total abandonment by the legislature of the principle that parties are bound by their contracts. The 2016 amendments create an exception whereby the settlement agreement can be set aside, but only when it is “just and reasonable” to do so.
(iv)What is “just and reasonable” is considered from the point of view of both parties’ interests.
(v)By enacting s 48 the legislature enacted the test of “just and reasonable” to direct the court to consider the interests of the party who has compromised his claim and the party who, but for the exercise of the discretion, has the benefit of the bargain.
(vi)The mischief being sought to be addressed by s 48 is the continuing burden upon a claimant who is the subject of an unfair settlement.
(vii)In considering the question of what is “just and reasonable”, the following factors are relevant:
“(a)any matter affecting the fairness of the process by which the settlement agreement was entered into, arising from the existence of a limitation period (eg coercion, inequality of bargaining power).
(b)      any matter affecting the substantive fairness of the settlement agreement, arising from the existence of a limitation period (eg whether the settlement sum was arbitrary or had no regard to the underlying merits of the claim).
(c)       whether the settlement agreement reflected a voluntary decision by the parties to choose finality in preference to a court-determined solution;
(d)      any procedural unfairness to the defendant which would follow from the settlement agreement being set aside (eg any evidential disadvantage to the defendant in now being obliged to defend proceedings).
(e)      any substantive unfairness to the defendant which would follow from the agreement being set aside (eg any change in the substantive law which would disadvantage the defendant in now being obliged to defend proceedings, any risk of loss of insurance cover).
(f)       any other relevant factors (eg wasted time and costs involved in the settlement process).”[118]
[118] Respondent’s written submissions, para 166.
The respondent submitted:
(i)the settlement process was fair, with both parties being represented by competent lawyers.
(ii)the settlement sum represented a fair settlement with any discount reflecting factors other than limitation considerations.
(iii)the settlement was the result of voluntarily made decisions by both parties to finally determine their rights.
(iv)in the event that the settlement was set aside, the respondent would be disadvantaged in its defence of the claim by loss of evidence and a decay of recollections.
(v)in the event that the settlement was set aside, substantive unfairness would be suffered by the respondent including:
(a)the inability or unwillingness of the applicant to return the respondent to its original position; repayment of the settlement sum.
(b)a change of the law regarding the respondent’s vicarious liability for the actions of Lynch.
(c)changes in such things as quantum decisions which potentially expose the respondent to a higher damages award.
(d)loss of insurance cover.
Legislative history
As already observed, the catalyst for the 2016 amendments to the Limitation Act was the report of the Royal Commission.[119] It:
(i)recommended removal of limitation periods for damages for sexual abuse against children in an institutional context but,
(ii)made no recommendation that limitation periods be removed for damages for sexual abuse against children in other than an institutional context.
(iii)made no recommendations that courts have jurisdiction to set aside judgments given before any amendments were enacted.
(iv)made no recommendation that courts have jurisdiction to set aside binding settlements made before any amendments were enacted.
[119] Relevantly set out at paragraph [75] of these reasons.
The 2016 amendments give wider relief from the operation of the limitations prescribed by the Limitation Act than the Royal Commission recommended. How that occurred is evidenced by the legislative history.
The first Queensland Government response to the interim report of the Royal Commission came on 16 August 2016. On that day the Premier issued guidelines for responding to civil litigation involving child sexual abuse. Those guidelines only concerned institutions operated by the Queensland State Government or its agencies and provided that the government should ordinarily “not rely upon a release or discharge from liability pursuant to the redress scheme established by the Forde Inquiry”. The Forde Inquiry was the Commission of Inquiry into Abuse of Children in Queensland Institutions, conducted in 1998 and 1999.[120] At the same time an Issues Paper was tabled by the Premier in the House and debate ensued.[121]
[120] The guidelines were announced to the House on 16 August 2016 by the Premier; Hansard 16 August 2016 pages 2725-2727.
[121] Hansard 16 August 2016 pages 2725-2727.
Issues Paper – The Civil Litigation Recommendations of the Royal Commission/Understanding The Queensland Context.
During the debate the Leader of the Opposition addressed the House as follows:
“This brings me to my next point, which relates to the deeds of settlement that have already been agreed to between parties. In many instances, settlements may have been entered into because there was a statutory time limitation on civil claims being presented to a court. This is another point of contention that we feel strongly about and believe the government has failed to acknowledge and address. If a right of action relating to a personal injury resulting from child sexual abuse was settled, the settlement agreement should not prevent a person from bringing an action under these revised rules unless a court otherwise orders having regard to the circumstances of the case. I note the comments from the Attorney-General on this matter as published in the Guardian online on 5 August that –
Any legislative attempt to remove past deeds entered into with private institutions has the potential to have far-reaching and unintended consequences.
Again, I foreshadow amendments to the bill through the proper parliamentary processes that provides for an opportunity for settlement agreements to be voided by the court but subject to any inherent, implied or statutory jurisdiction of the court. The judges with the experience will have the ability to supervise and supervene any such claims.
We will work through the committee process and encourage victims’ advocate groups to support sensible changes that improve the scheme for survivors of these heinous crimes. If we are going to learn from past societal abuses, it is only right that as legislators we do what we can to ensure that these changes are fair, non-discriminatory and lawful. That is the aim of the LNP.[122] I again want to thank the Premier for this opportunity to speak on this very important issue. We will be supporting the thrust of the legislation, but we do believe it can be made better. We believe this is the opportunity for all of us to do something that will right the wrongs of the past and ensure a fair day in court for all those who have suffered from past abuses.”[123]
[122] A reference to the Liberal National Party.
[123] Hansard 16 August 2016, page 2727.
Later on 16 August 2016 the Premier introduced the Limitation of Actions (Institutional Sexual Abuse) and Other Legislation Amendment Bill 2016 (“the first bill”). The first bill proposed new sections 11A and 48 as follows:
“11A   No limitation period for actions for child sexual abuse happening in institutional context
(1)An action for damages relating to the personal injury of a person resulting from the sexual abuse of the person in an institutional context when the person was a child—
(a)      may be brought at any time; and
(b)is not subject to a limitation period under an Act or law or rule of law.
(2)For subsection (1), sexual abuse happens in an institutional context if the sexual abuse—
(a)      happens—
(i)       on the premises of an institution; or
(ii)      where activities of an institution take place; or
(iii)in connection with the activities of an institution; or
(b)is engaged in by an official of an institution in circumstances, including circumstances involving settings not directly controlled by the institution, in which the institution has, or the institution’s activities have, (whether by act or omission) created, facilitated, increased, or contributed to—
(i)       the risk of sexual abuse of children; or
(ii)the circumstances or conditions giving rise to the risk of sexual abuse of children; or
(c)happens in any other circumstances in which an institution is, or should be treated as being, responsible for persons having contact with children.
(3)This section applies whether the claim for damages is brought in tort, in contract, under statute, or otherwise.
(4)      This section applies to an action for damages—
(a)arising under the Civil Proceedings Act 2011, section 64; or
(b)that has survived on the death of a person for the benefit of the person’s estate under the Succession Act 1981, section 66.
(5)      This section does not limit—
(a)any inherent, implied or statutory jurisdiction of a court; or
(b)any other powers of a court under the common law or any other Act (including a Commonwealth Act), rule of court or practice direction.
Example—
This section does not limit a court’s power to summarily dismiss or permanently stay proceedings if the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
(6)      In this section—
institution means an entity (whether existing or no longer existing, whether or not incorporated, and however described) that provides or provided activities, facilities, programs or services of any kind that gives or gave an opportunity for a person to have contact with a child.
official of an institution includes—
(a)a representative (however described) of the institution or a related entity; and
(b)a member, officer, employee, associate, contractor or volunteer (however described) of the institution or a related entity; and
(c)a person who provides services to, or for, the institution or a related entity, including, for example, a member, officer, employee, associate, contractor or volunteer (however described) of an entity; and
(d)any other person who would be considered as, or should be treated as if the person were, an official of the institution.
48       Transitional provision for Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Act 2016
(1)Section 11A applies to an action for damages whether the right of action accrued before or after the commencement of that section (the commencement).
(2)An action on a previously barred right of action may be brought even if—
(a)a limitation period previously applying to the right of action has expired; or
(b)another action has been started in the right of action but not finalised before the commencement; or
(c)another action was started in the right of action and discontinued before the commencement; or
(d)a judgment was given in relation to the right of action on the ground that a limitation period applying to the right of action had expired; or
(e)an action in the right of action was dismissed on the ground that a limitation period applying to the right of action had expired.
(3)If an action on a previously barred right of action is brought after the commencement, the court hearing the action may, if the court decides it is just and reasonable to do so, do either or both of the following—
(a)set aside a judgment given in relation to the right of action on the ground that a limitation period applying to the right of action had expired;
(b)take into account any amounts paid or payable as damages or costs under the judgment.
(4)The Supreme Court may, on application, set aside a judgment under this section even though the Supreme Court is not hearing the action.
(5)However, a court, other than the Supreme Court, may not set aside another court’s judgment under this section.
(6)      In this section—
previously barred right of action means a right of action for an action to which section 11A applies that was not maintainable immediately before the commencement because a limitation period applying to the right of action had expired.”

What is clear is that the real risk to the applicant’s case was a failure of a court to accept that BQP and or BQH had placed Dr Howell on notice of the risk posed by Lynch. If the applicant did not succeed on that issue, then the case was lost. Given though the absence of any knowledge by the applicant (during the limitation period) of the experiences of BQP and BQH, their evidence, if accepted, would likely resolve the Limitation Act issue in favour of the applicant.
In practical terms, the limitation issue was not the applicant’s real problem. His problem was to convince a court that an experienced school principal was made aware that Lynch was sexually preying upon students but then did nothing about it. The applicant may have won on that issue, but there was a very significant risk that he wouldn’t and I draw the inference that it was that factor which drove the settlement down. In the end the settlement figure seemed to have been reached by exchanges of offers (without explanation of how the figures were calculated) until common ground was reached. In making those various offers, both parties no doubt had in mind the risk that relevant knowledge in Dr Howell may have been proved (the respondent’s risk) or not proved (the applicant’s risk).
I find that the limitation issue did not materially affect the quantum of the settlement reached and was not a material factor in the applicant’s decision to settle the 2001 proceedings.
Reasonableness of the mediation process
The applicant’s memory is that he was not satisfied with the process. In his first affidavit he said this:
“36. The mediation process seemed rushed. I remember at one point I went into a boardroom where there were about 8 other people sitting around a table. I did not know any of these people. I have a very patchy recollection of what was said in that room. I recall people I did not know talking about me and my case. I remember finding some of the comments irrelevant and offensive. I recall people made references to the psychiatric report of Dr Larder, though I had never seen the report. I felt the whole mediation process minimised the experience which I had been through.”[230]
[230] Applicant’s first affidavit, para [36].
The applicant honestly accepts that his recollection of the mediation is limited.[231] Various details to which he swore are objectively incorrect. For instance, his recollection of signing the settlement agreement at the mediation[232] is wrong. This though is all understandable given that at the time of the mediation he was in a state of depression, was suicidal[233] and was being asked to confront issues concerning his abuse at the hands of Lynch.
[231] Paragraph 3 of the applicant’s first affidavit.
[232] Applicant’s first affidavit, para [37].
[233] Applicant’s first affidavit, para [35].
The applicant, through Mr Lynch, generally accepted that the mediation process was fair[234] but submitted that the fact that the mediation process was conducted fairly “is largely irrelevant”.[235]
[234] Applicant’s written submissions, paras [39] and [40] and reply submissions, para 22.
[235] Applicant’s written submissions, para [40] and reply submissions, para 22.
Mr Lynch specifically conceded that the mediation process was “fair and reasonable at the time”[236] and that the respondent’s conduct in organising and facilitating the mediation was “exemplary”.[237] I deal with the relevance or otherwise of the mediation process later,[238] but Mr Lynch’s concessions that the mediation was fair and that the respondent acted in a “exemplary” fashion are properly made, in particular because:
(i)an experienced mediator was engaged;
(ii)the mediator was engaged in setting up the structure of the mediation process;
(iii)the respondent paid for the mediation;
(iv)the applicant was represented by experienced solicitors and very able counsel;
(v)the sessions were organised so the claimants were not involved in legal argument but could concentrate on giving input into their individual claims;
(vi)although the applicant may now consider that the mediations were rushed, they were not. The individual sessions were each between one and two hours and it appears clear that the applicant was given ample opportunity to put his point of view;
(vii)during the mediation there was no challenge to the applicant’s allegations of being abused by Lynch; and
(viii)The respondent’s acceptance of the truth of the allegations was reinforced in the apology session.
[236] Applicant’s written submissions, para [39].
[237] Applicant’s written submissions, para [40].
[238] See paragraph [277] of these reasons.
The claimants as a group were not, it seems, happy with the way in which the respondent conducted itself, particularly in relying upon the limitations defence.[239] In circumstances such as those of the applicant, it is completely understandable that he would feel resentment against the respondent; he had been sexually assaulted in an environment where he was entitled to feel safe by an employee of the respondent who clearly took advantage of the applicant’s vulnerability.
[239] See paragraph [202] of these reasons.
However, as already observed,[240] the respondent had a legitimate interest which it was obliged to defend. I have not seen anything in the material before me which could form the basis of any legitimate criticism of the respondent, its representatives,[241] or its legal advisors, in their conduct in handling the issues raised by Lynch’s criminal actions once those matters emerged in the year 2000.
[240] See paragraph [206] of these reasons.
[241] Dr Lennox or Mr Stack.
The reasonableness or otherwise of the settlement figure
As already observed, the filed claim was in an amount of $389,360.[242] Even though the statement of loss and damage subsequently delivered calculated the claim at over a million dollars, that position was never seriously pressed. The opening offer from Shine was $150,399.00[243] and that was based on the quantum opinion of Mr Douglas QC and Ms Treston which valued the claim at its highest, before discounts at $167,110.
[242] See paragraph [35] of these reasons.
[243] See paragraph [41] of these reasons.
On the application before me the respondent did not accept the range of damages suggested by Mr Douglas QC and Ms Treston in 2002. Detailed written submissions were made by the respondent on this point supplemented by oral submissions by Mr Holyoak of counsel who was led on the application by Mr McKenna QC. Those submissions were to the effect that the true range was between $61,000 to $96,050 which after a 50% discount for litigation risks gave a settlement range of between $30,500 to $48,525. Mr Lynch submitted that the assessment done in 2002 by Mr Douglas QC and Ms Treston was inherently superior to any analysis done now because of its closeness in time to the actual settlement. I reject that submission. There is no logical reason why I ought not have regard to submissions on quantum made now based on material available in 2002 in order to assess the reasonableness or otherwise of the figure settled upon then.
My task though is not to assess quantum and make an award, but rather to generally assess the reasonable or otherwise of the figure settled upon as the parties rightly contend that to be a relevant consideration on the question of whether it is just and reasonable to set aside the settlement agreement. I do not propose to make findings on the correctness or otherwise of the respective opinions on quantum. What Mr Holyoak did demonstrate though is that the assessment of damages, in a case such as this, where psychiatric injury is alleged and the task is to assess the value of the lost chance of earning income, is made difficult by the number of variables necessarily present when attempting to value the loss.[244] The lawyers for both sides would have had those considerations in mind when negotiating the settlement in 2002.[245]
[244] For example, WAQ v DiPino [2012] QCA 283; even taking into account the onus of establishing contributing causes of the loss might fall upon the respondent; Watts v Rake (1960) 108 CLR 158.
[245] See the joint advice of Mr Douglas QC and Ms Treston, paragraph 120, exhibit 1 to the applicant’s second affidavit.
There has been somewhat of a concentration upon difficulties faced by the applicant in the claim. However, there were also pressures upon the respondent to reach a settlement with the claimants without having a trial (or trials) where serious allegations against it would be aired, in some respects, no doubt in public.
Shine knew that the respondent would find settlement out of court attractive and no doubt knew that the respondent would be likely willing to pay compensation to their clients notwithstanding difficulties with the claims, if publicity (and therefore reputational damage) could be avoided. This was an issue which was raised during the process:
(i)In their letter of 13 March 2001, Shine said to Corrs:
“Prior to issuing these proceedings, we invite you to consider early settlement of this matter. We feel that it would be in the best interests of all parties concerned to attempt a resolution through settlement, rather than through more time consuming, costly and public litigation.”[246]
(ii)On 18 April, in their “without prejudice” submissions to Corrs, Shine said:
“As flagged at the meeting of 27 March 2001, we are ready to issue proceedings.
We again point out that this solution, and any settlement negotiations entered into on behalf of the claimants, would negate the necessity for long, costly and public litigation.”[247]
(iii)Against that background, Shine issued proceedings and conducted a press conference before the proceedings were served on the respondent.[248]
(iv)The mediation agreement banned the parties from making media statements and prohibited disclosure of the terms of any settlement reached.[249]
(v)The settlement agreement also contained a general confidentiality provision.[250]
[246] Abernathy affidavit (Ex DJA-16, p 66), emphasis added.
[247] Abernathy affidavit (Ex DJA-23, p 73 at 86), emphasis added.
[248] Abernathy affidavit (Ex DJA-24, p 100).
[249] Abernathy affidavit (Ex DJA-44, p 238 at cll 12 and 13 on p 241).
[250] Abernathy affidavit (Ex DJA-76, p 454 at 456, cl 6).
There is nothing to suggest that the settlement figure of $47,000 was not a fair and reasonable reflection of the applicant’s case as it appeared in 2002. It was the product of an arm’s length bargain facilitated through a fair mediation process where the applicant was very ably represented.
The applicant’s claim was a relatively modest one (on his own barristers’ advice) which faced difficulties and where there were pressures on both sides. A fair negotiation process settled on a figure of $47,000 and I find that was a reasonable settlement. For the reasons explained earlier the limitation issued had no material impact upon the quantum of the settlement.
The impact of delay
As previously described it is well recognised that the court’s ability to do justice in any case is adversely affected by delay.[251] We are now over 16 years from the date the 2001 proceedings settled and 30 years after Lynch’s sexual assaults upon the applicant.
[251] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; the often quoted observations of McHugh J.
It wasn’t argued by Mr Lynch that there wasn’t prejudice caused to the respondent by delay, but he submitted that the prejudice was not relevant in the application before me. It is necessary to consider the impact of the delay.
By the time of the 2002 settlement, evidence had already been lost; in particular:
(i)Dr Howell’s secretary had died;
(ii)various school records had been destroyed; in particular diaries recording appointments, etc of Dr Howell;
(iii)Lynch had died.
Since 2002:
(i)Dr Howell has died;
(ii)the Shine files have, it seems, been destroyed.
For reasons already expressed, I have concluded that the respondent was never going to call Lynch as a witness in its defence of the claim.
Evidence which may have been given by Dr Howell and his secretary would likely concern the issue of Dr Howell’s knowledge of Lynch’s activities through BQP and BQH. That has rather become a non-issue given the High Court’s decision in Prince Alfred College Inc v ADC.[252] Since the decision in that case, the respondent will be liable for the impact of the criminal actions of Lynch if it had assigned a special role to him and provided him with the occasion to commit the sexual assaults. The critical facts here are the ones I identified earlier[253] and neither Dr Howell nor his secretary were likely to be able to give evidence contradicting those facts.
[252] (2016) 258 CLR 134.
[253] See paragraph [185] of these reasons.
The lost school records would largely also relate to the issue which was critical before the decision of Prince Alfred College, namely whether Dr Howell met with BQP and BQH on the occasions when they allegedly informed him of Lynch’s activities. Shine’s files, if they were available, may either corroborate or contradict the applicant on matters relevant to this application. They may perhaps also have contained statements and instructions of the applicant which might be relevant to questions of quantum,[254] but issues of legal professional privilege would arise in relation to those communications. There is a possibility that the files may have contained documents relevant to any new case which might be launched now, but it is difficult to think of anything significant which may have been lost.
[254] Since Prince Alfred College, the respondent’s liability seems hardly to be a serious issue.
Mr McKenna QC, no doubt appreciating the difficulty in pointing to specific sources or categories of relevant evidence that may have been lost, concentrated his submissions on the general decay of evidence relevant to quantum. That was described in these terms: “The ability of witnesses to recall the detail of individual students’ aptitude, disposition and changes had diminished”.[255] That was said to be relevant to quantum.[256]
[255] Written submissions, para 53(c).
[256] Transcript 1-34.
There is little doubt that the applicant was experiencing troubles at home. His parents separated while he was in primary school. The impact of that, as opposed to compensatable loss arising from Lynch’s actions was, by 2002 difficult to distil. The applicant’s school grades did not fall, at least at the onset of his parent’s difficulties and Dr Larder opined that there was a connection between the applicant’s falling academic performance and Lynch’s assaults upon him.
Legitimate lines of injury by the respondent on these issues would be with friends, associates and teachers who knew the applicant and observed him at the School. By 2001 the investigations would be difficult. Now they are likely impossible. To that extent the respondent is prejudiced in the defence of any new proceedings.
Costs thrown away
There is no direct evidence as to the costs incurred by the respondent in relation to the 2001 proceedings and the settlement.
The applicant was paid $12,000.00 as party party costs in terms of the settlement. In total then the applicant was paid $59,000.00 by the respondent and received $24,000.00 from his solicitors after the payment of costs. Therefore his solicitor and client costs were $35,000.00. That may give some indication as to the respondent’s costs as they relate to the applicant’s 2001 proceedings.
In addition the respondent paid for Dr Larder’s report and paid all costs associated with the mediation.
No finding can be made beyond that the costs which were incurred by the respondent of and incidental to the applicant’s claim in 2001 were substantial.
Loss of insurance
There is no direct evidence as to whether indemnity is now available to the School against any insurer.[257] There is evidence that when the claims were initially made in 2000 insurers were reluctant to indemnify the School but ultimately partially did.
[257] But see Abernathy affidavit, paras [61]-[64].
The only finding that can be made on the evidence in its present state is that there must be some unquantifiable risk that the respondent will be without effective insurance cover in relation to any new proceedings.
Change of the law
Since 2002 the law has changed (or in one respect reinterpreted) in two significant ways. Firstly there are the 2016 amendments to the Limitation Act. Secondly, there is the restatement by the High Court of the law concerning vicarious liability of employers for the criminal acts of their employees.
The respondent’s point is that it is prejudiced by the settlement being set aside because it would then be forced to face proceedings where the law as presently understood concerning its vicarious liability for Lynch’s criminal actions, is less favourable to it than it was in 2002.
It can be accepted that the understanding of the law of vicarious liability has changed and has changed unfavourably to the respondent. The relevance of the change of the law is not in my view that the respondent may now be forced to litigate in a legal climate less favourable to it. The significance of the change of law is more as to the reasonableness or otherwise of the settlement at the time it was reached. It is not the policy of s 48(5A) of the Limitation Act that settlements should be set aside to facilitate new claims based on more favourable views as to the vicarious liability of employers for the criminal actions of their employees. This can be tested by supposing that the respondent had, in the 2001 proceedings not taken the limitation defence. For the reasons already explained, in my view the claim would still have been heavily discounted because of the difficulties which the applicant faced in attributing liability to the respondent by proving Dr Howell’s knowledge of Lynch’s actions. In those circumstances the 2016 amendments would not have afforded the applicant any right to apply to set aside the settlement agreement.
The offer of ongoing counselling
As previously observed, solicitors for the applicant asked the School as to the availability of ongoing counselling.[258]
[258] See paragraph [78] of these reasons.
The respondent submits that the offer is a relevant consideration in its favour.
Mr Lynch in his reply submission says;
“52”. The respondent’s vague “offers” of ongoing counselling and possibly treatment, were not the subject of the binding settlement agreement. The applicant did not receive the benefit of such offers and the respondent did not suffer any detriment as the applicant, justifiably, declined ongoing involvement with the School where his sexual abuse occurred.”
That submission is at once both unfair and somewhat illogical. The applicant inquired as to the availability of counselling and the school immediately responded by inquiring as to what assistance was required so it could consider its position. It was the terms of the approach by the applicant to the respondent which was “vague”, not the response of the respondent.
The reason offered by Mr Lynch for the applicant not taking up the offer for counselling seems to be that he does not want any further involvement with the School. However, it was the applicant who instructed his solicitors to make inquiry of the School as to the availability of assistance.
In the end though, Mr Lynch is correct to the extent that he says that there is no ongoing legal obligation upon the respondent to provide counselling, and, for whatever reason, the counselling was not provided and so the respondent is not out of pocket.
Exercise of discretion/conclusions
I have taken into account the fact that if the settlement is set aside the applicant has good prospects of recovery of significantly more than the settlement sum paid in 2002. The issue of further proceedings would be well justified.

The fact that the respondent paid its own costs of the 2001 proceedings (as those costs relate to the applicant) and paid the applicant’s party party costs of $12,000.00 is a relevant consideration. Mr Lynch’s submission that there will always be costs associated with a settlement which is subject to be set aside under s 48(5A) can be accepted. His submission that it therefore follows that the fact that costs have been incurred is irrelevant is rejected. The fact that costs were incurred and paid by a defendant in the earlier proceedings is a relevant consideration which as a matter of degree, may or may not influence the exercise of discretion. I take it into account here in a limited way as later explained.
Mr Lynch points to the legislative intention expressed by s 11A of the Limitation Act namely that limitation periods do not now apply to claims for damages arising from sexual abuse of children. His submission that prejudice caused by delay is irrelevant (as a matter of law, it seems) should be rejected. There may be cases where, despite the policy behind s 11A, prejudice to a defendant caused by the effluxion of time may be a weighty consideration. However, that is not the case here. For the reasons explained earlier,[259] the only potential prejudice to the respondent is the general decay of memories of potential witnesses who had dealings with the applicant at the time he was at the School. That is the type of prejudice which the policy behind s 11A would regard as irrelevant to claims of child sexual abuse. I therefore ignore it.
[259] Paragraphs [254]-[256] of these reasons.
While, for the reasons previously explained,[260] I have found that there is a possibility that the respondent may not have a right of indemnity against any insurance policy, the evidence on that topic is so vague that I have not given it any weight.
[260] Paragraphs [261]-[262] of these reasons.
The offer of further counselling is relevant, as, if supplied, the counselling is a benefit to the applicant. However, dealings about further counselling never went beyond initial inquiry so I have ignored it.
As previously observed, Mr Lynch submitted that the good conduct of the respondent in the 2001 proceedings and the settlement was only relevant to the extent that it proved there was no misconduct or duress etc. That was his “threshold” submission which I rejected. I have taken into account the conduct of the respondent (and the incurring of costs by the respondent) in the original claim in these limited ways:
(i)There was no intimidation, bullying or high handed action by the respondent.
(ii)The respondent paid for and otherwise facilitated an elaborate process for settlement of all claims including that of the applicant.
(iii)By those actions, and because the applicant was represented by Shine and competent counsel, there was no inequality of bargaining position.
The settlement was the product of fair, arms-length negotiations between two parties on equal footing, both appropriately represented.
The settlement figure of $47,000.00[261] was a fair settlement reflecting the factual and legal strengths and weaknesses of the parties’ respective cases properly assessed at that time by them. The discount of the applicant’s claim was not materially contributed to by any consideration of limitation defences.
[261] Plus costs.
In the circumstances as I have found them, and having directed myself to the purposes for which the discretion is to be exercised as I have identified, I find that it is not just and reasonable to set aside the settlement.
Orders
The application is dismissed.
The parties are to be heard on the issue of costs.

CITATION:	TRG v The Board of Trustees of the Brisbane Grammar School [2019] QSC 157
PARTIES:	TRG (applicant) v THE BOARD OF TRUSTEES OF THE BRISBANE GRAMMAR SCHOOL (respondent)
FILE NO/S:	BS No 6267 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 June 2019
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2018
JUDGE:	Davis J
ORDERS:	1. Application dismissed. 2. The parties are to be heard on the issue of costs.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – where the applicant reached a settlement agreement with the respondent in 2002 in relation to claims of institutional sexual abuse at Brisbane Grammar School during 1987 and 1988 – where the applicant applied under s 48(5A) of the Limitation of Actions Act 1974 for an order setting aside the settlement agreement – where the Act provides that a court may set aside a previous settlement agreement if it is “just and reasonable” to do so – where the parties disagreed on the meaning and scope of “just and reasonable” under the Act – whether it was just and reasonable for the court to set aside the settlement agreement Acts Interpretation Act 1954 (Qld), s 14A, s 14B Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA) Grammar Schools Act 2016 (Qld) Justice and Community Safety Legislation Amendment Act 2017 (No 2) (ACT) Limitation Amendment Act 2017 (Tas) Limitation Amendment (Child Abuse) Act 2016 (NSW) Limitation of Actions Act 1974 (Qld) Limitation of Actions and Other Legislation (Child Abuse Civil Proceedings) Amendment Bill 2016 (Qld) Limitation of Actions (Child Abuse) Act 2015 (Vic) Limitation of Actions (Child Abuse) Amendment Act 2018 (SA) Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41, followed Bell v SPC Ltd [1989] VR 170; [1989] VicRp 15, cited Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited Crime and Corruption Commission v Swindells [2009] QSC 409, cited Dick v University of Queensland [2002] 2 Qd R 476; [1999] QCA 474, cited Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, cited Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, cited Hegarty v Queensland Ambulance Service [2007] QSC 90, cited In re Stuart [1893] 2 QB 201, cited Jones v Hamersley Resources Ltd [2005] NSWCA 371, cited Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited Makin v Attorney-General for New South Wales [1894] AC 57; [1893] UKPC 56, cited McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129; [2007] SASC 90, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, followed Moriarty v Sunbeam Corp Ltd [1988] Qd R 325, cited Muir v Franklins Limited[2001] QCA 173, cited New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, cited Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, followed Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45, cited Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37, followed Purnell v Medical Board of Queensland [1999] 1 Qd R 362; [1997] QCA 253, followed R v Dossett (1846) 2 C & K 306; [1846] EngR 889, cited R v Geering (1849) 18 L.J. (N.S.) (M.C.) 215, cited R v Gray (1866) 4 F & F 1102; [1866] EngR 21, cited Rich v State of Queensland & Ors[2001] QCA 295, cited Sapwell v Lusk & Anor [2010] QSC 344, cited SAS Trustee Corporation v Miles (2018) 92 ALJR 1064; [2018] HCA 55, cited SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; (2017) 91 ALJR 936; [2017] HCA 34, followed Unions NSW v New South Wales (2019) 93 ALJR 166; [2019] HCA 1, followed Walla v State Transport Authority [1985] VR 327; [1985] VicRp 32, cited Wolters v University of the Sunshine Coast [2012] QSC 298 cited WAQ v Di Pino[2012] QCA 283, cited Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, cited
COUNSEL:	R J Lynch with J P D Trost for the applicant J McKenna QC, with K Holyoak, for the respondent
SOLICITORS:	McNamara and Associates for the applicant Corrs Chambers Westgarth for the respondent

“General damages	$ 30,000.00
Interest (on $20,000.00 at 2% for 15 years)	$ 6,000.00
Past Economic Loss (global assessment)	$ 40,000.00
Interest (at 5% for 5 years)	$ 10,000.00
Future Economic Loss	$ 40,000.00
Past Superannuation Losses (7%)	$ 2,800.00
Future Superannuation Losses (9%)	$ 3,600.00
Past Special Damages Pharmaceutical expenses - $70.00 Travelling expenses - $1,040.00 HIC refund - TBA Treatment expenses (Fairhaven Rehabilitation Centre) - $11,700.00 Total - $12,810.00	$ 5,000.00
Interest on Past Special Damages	TBA
Future Special Damages (psychiatric costs)	$ 25,000.00
Past Griffiths v Kerkemeyer (claimed at $2,600 but reduced by 30% to 50%)	$ 1,820.00
Future Griffiths v Kerkemeyer (claimed at $4,129 but reduced by 30% to 50%)	$ 2,890.00
Subtotal	$167,110.00
The amount of $167,110.00 discounted by 10%	Total $150,399.00
Exemplary Damages	………......”[51]