TRG v Board of Trustees of the Brisbane Grammar School

In the case of TRG v Board of Trustees of the Brisbane Grammar School, the Court of Appeal was asked to consider whether it was just and reasonable to set aside a settlement agreement between the parties, following amendments to the Limitation of Actions Act 1974 (Qld) that removed limitation periods for personal injury claims relating to child sexual abuse. The appellant, a former student of the respondent school, had reported that he was sexually assaulted by a school counsellor on numerous occasions between 1986 and 1989. He reached a settlement with the school in 2002, but the amended legislation introduced a provision that allowed settlements entered before the amendments to be set aside if the court considers it just and reasonable to do so.

The legal issues for the court to decide included the correct interpretation of the legislative purpose of s 48(5A) of the amending Act, and whether the primary judge had erred in considering the factors relevant to determining whether it was just and reasonable to set aside the settlement. The appellant argued that the dominant purpose of the legislative provision was to allow victims of childhood sexual abuse to have their claims decided on their merits, not influenced by limitation periods. The court needed to decide whether the primary judge had erred in interpreting the legislative purpose of s 48(5A) and whether the construction contended for by the appellant should be accepted.

The Court of Appeal held that the primary judge's approach to the interpretation of s 48(5A) was correct, and that the court was required to strike a balance between the interests of both parties to the settlement agreement, the balance being what is “just and reasonable”. The court found that the limitation issue did not materially affect the quantum of the settlement and was not a material factor in that settlement. The appellant’s solicitors had been given advice regarding the prospects of establishing that the respondent was liable for the assaults and the prospects of obtaining an extension of the limitation period. The court held that the new evidence that emerged in 2002 could not have constituted a “material fact of a decisive character” for the purpose of an application for extension of the limitation period. Accordingly, the appeal was dismissed with costs.