TRG v Board of Trustees of Brisbane Grammar School

The applicant, who was sexually assaulted by a teacher at Brisbane Grammar School in the late 1980s, sought to set aside a settlement agreement reached with the Board of Trustees of Brisbane Grammar School in 2002. The applicant applied under section 48(5A) of the Limitation of Actions Act 1974 for an order setting aside the settlement agreement so that he might commence fresh proceedings for damages. The court needed to determine whether it was just and reasonable for the court to set aside the settlement agreement. The applicant argued that the settlement agreement should be set aside because the respondent had paid the applicant's costs in the original proceedings and had facilitated an elaborate process for the settlement of all claims. The respondent argued that the settlement agreement should not be set aside because it was entered into voluntarily and without any duress or inequality of bargaining position.

The court considered the arguments of both parties and found that while the applicant had good prospects of recovery of significantly more than the settlement sum paid in 2002, the fact that the respondent had paid its own costs of the 2001 proceedings and the applicant's party party costs of $12,000.00 was a relevant consideration. The court also found that the general decay of memories of potential witnesses who had dealings with the applicant at the time he was at the School was a type of prejudice which the policy behind s 11A would regard as irrelevant to claims of child sexual abuse. The court further found that the respondent's conduct in the original claim was not intimidation, bullying or high handed action, and that there was no inequality of bargaining position. The court therefore dismissed the application and ordered that the parties be heard on the issue of costs.