Walsh (a pseudonym) v Trustees of the Roman Catholic; Church for the Archdiocese of Canberra and Goulburn
[2024] ACTSC 81
•28 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Walsh (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn |
Citation: | [2024] ACTSC 81 |
Hearing Dates: | 24 November 2023, 30 November 2023 |
Decision Date: | 28 March 2024 |
Before: | Curtin AJ |
Decision: | See [278] |
Catchwords: | STATUTES – INTERPRETATION – Consideration of legislative amendments responding to the Royal Commission into Institutional Responses to Child Sexual Abuse – statutory interpretation of pt 8A.3 of the Civil Law (Wrongs) Act 2002 (ACT) – meaning of “legal barriers” to person being fully compensated – meaning of “or” – principles applicable to determining whether an agreement is “not a just and reasonable agreement” CIVIL LAW – PRACTICE AND PROCEDURE – Application to set aside abuse settlement agreement – where deed of release entered into to settle child sexual abuse claim – where limitation period had expired – where plaintiff prevented from exercising an action on a cause of action – whether deed of release is not a just and reasonable agreement – considerations – deed of release set aside |
Legislation Cited: | Contracts Review Act 1980 (NSW) |
Cases Cited: | Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30 |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 March 2019, 782 (Rachel Stephen-Smith) |
Parties: | Dominic Walsh (a pseudonym) ( Plaintiff) Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn ( First Defendant) Archbishop Christopher Prowse (Second Defendant) Commonwealth of Australia (Third Defendant) |
Representation: | Counsel H Ehsan ( Plaintiff) R Walls ( First and Second Defendant) S Xian (Third Defendant) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) Wotton + Kearney (First and Second Defendant) Clayton Utz (Third Defendant) | |
File Number: | SC 301 of 2023 |
Introduction
Background
The plaintiff’s early life
First instance of alleged sexual abuse
Second instance of alleged sexual abuse
Third instance of alleged sexual abuse
Further instances of alleged sexual abuse
Impact of the sexual abuse on the plaintiff’s life
Employment history
Medical treatment
Disclosure of the sexual abuse
Injuries and disabilities
The execution of the Release
Advice about setting aside the Release
Sections 114I-114K of the Wrongs Act
The principles of statutory construction
The context to the legislation
The submissions
Common ground
The plaintiff’s submissions on s 114K(3)
The defendant’s submissions on s 114K(3)
Decision
Discretion and the Court’s satisfaction
The interpretation of 114K(3)(a)
The word “or”
The interpretation of 114K(3)(b)The time for assessment
The agreement must not be just and reasonable
Other jurisdictions – one significant differenceVictoria
Queensland
Western Australia
The operation of “just and reasonable” in s 114K(3)(b)
The application of s 114K(3)(a)-(b) of the Wrongs Act to the facts of this case
Section 114K(3)(a)
Section 114K(3)(b)
Costs
Orders
CURTIN AJ:
Introduction
1․The plaintiff is a child sexual abuse survivor who is now 63 years old.
2․This is an application in proceeding filed by the plaintiff seeking an order to set aside a deed of release (the Release) dated 16 October 2006 which settled a child sexual abuse claim.
3․The Release was entered into between the plaintiff and the “Catholic Archdiocese of Canberra and Goulburn”, and purportedly “all current and past Clergy of the Catholic Archdiocese of Canberra and Goulburn” and “all current and past staff, servants or agents of The Catholic Archdiocese of Canberra and Goulburn in particular [sic] of the Parish of Aranda in the Australian Capital Territory”.
4․There is no dispute that the Release falls within the definition of an “abuse settlement agreement” in s 114J of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act).
5․The abuse is alleged to have occurred between 1966 to 1973 whilst the plaintiff was a child parishioner of the St Vincent de Paul Catholic Church, over which the first and second defendant had care, control, and management. The perpetrator of the alleged abuse was Father Lloyd Reynolds, an ordained priest of the Catholic Church of Australia (the Church), now deceased.
6․The plaintiff’s application is based on the provisions contained in pt 8A.3 of the Wrongs Act, which commenced operation on 10 December 2022, and which allows for the setting aside of abuse settlement agreements (as defined).
7․Two central issues needed to be determined on this application. The first is the proper interpretation of pt 8A.3, as will be explained shortly below. The second is the application of pt 8A.3 to the facts of this case.
8․The most critical provision of pt 8A.3 for the purposes of this application is s 114K(3) which says (with emphasis added to identify the critical words):
…
(3)The court may set aside the agreement if the court is satisfied that—
(a)when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or
(b)when the application is made to set aside the agreement, the agreement is, in all the circumstances, not a just and reasonable agreement.
…
9․The three central matters of statutory interpretation involved in this application are:
(a)the meaning of “legal barriers” in sub-s (3)(a);
(b)whether the word “or” at the end of sub-s (3)(a) should be interpreted to mean “and”; and
(c)identifying the principles applicable to the test of “just and reasonable” in sub-s 3(b).
10․The first and second defendants neither consented nor opposed the Release being set aside but did make a number of submissions on the question of statutory interpretation. The third defendant did not take any active role in the application.
11․For the reasons that follow, the Release should be set aside.
12․Redactions have been made in the published version of this judgment because of the non-disclosure order I have made, and to prevent identification of the plaintiff.
Background
13․The plaintiff’s evidence on the application is as set out below. His evidence was not challenged in cross-examination.
14․The defendants did not adduce any evidence on the application, and in particular, did not dispute the plaintiff’s evidence as to the circumstances surrounding the execution of the Release.
The plaintiff’s early life
15․The plaintiff was born on [redacted] at the Canberra Hospital in the Australian Capital Territory. He is currently 63 years of age. [Redacted].
16․He is the [redacted]. His family resided together in [redacted] in the ACT and later in [redacted] in the ACT.
17․The plaintiff’s mother was a devout Catholic and his father a non-practicing Methodist. Despite his parent’s religious backgrounds, the plaintiff was not raised in accordance with any particular religious faith.
18․Unfortunately, one of the [redacted]. The plaintiff said that that this significantly affected his family. His mother became depressed, and his father spent the majority of his time working to cope with the [redacted] and the deterioration of his mother’s mental health. The plaintiff said that if his father was around, he was angry and would tell the plaintiff off for misbehaving at school.
19․The plaintiff said that his parent’s absence during childhood in the wake of [redacted] significantly affected his relationship with Father Reynolds, who was aware of [redacted] and took advantage of this by purporting to take care of the plaintiff and purporting to relieve the pressure on the plaintiff’s mother.
First instance of alleged sexual abuse
20․In approximately 1966, when the plaintiff was six or seven years of age, he frequently attended the Canberra Olympic Pool to go swimming during the summer holidays with his friends.
21․On one of those occasions, Father Reynolds approached the plaintiff and two of his friends while they were in swimming in the pool. The plaintiff recalled that Father Reynolds was wearing board shorts. One of the plaintiff’s friends informed the plaintiff that Father Reynolds wanted to play with them. The plaintiff said that he does not recall objecting to this. Father Reynolds asked the plaintiff and his friends if they would like to go to his presbytery and help him fold the bulletins that he distributed to parishioners each week.
22․Father Reynolds then proceeded to ‘play with’ the plaintiff and his friends by lifting them up one at a time with one hand under their arm and one hand on their hip and throwing them into the pool. The plaintiff said that on no less than three of the occasions where Father Reynolds lifted and threw the plaintiff into the pool, Father Reynolds stuck a finger up his swimming shorts and underpants to the point of touching the plaintiff’s genitals. The plaintiff initially thought this was an accident, however realised it was intentional when one of the plaintiff’s friends informed him that Father Reynolds had touched him in a similar way.
23․When they finished playing in the pool, Father Reynolds asked the plaintiff and his friends whether they wanted a lift home in his car. The plaintiff and his two friends accepted the lift home. The plaintiff recalled Father Reynolds driving a white Toyota Crown with a red interior.
24․Father Reynolds said that he would take the plaintiff and his friends to get ice cream before dropping them home. Father Reynolds took the plaintiff and his friends to his presbytery house at the St Vincent de Paul Catholic Church in Aranda in the ACT (the Aranda Church) and gave them cherries and ice cream before driving them home.
25․Father Reynolds dropped the plaintiff off last and came into the plaintiff’s house to meet his parents. Father Reynolds talked to the plaintiff’s mother for approximately 20 minutes.
Second instance of alleged sexual abuse
26․Approximately one week later, Father Reynolds returned to the plaintiff’s home and asked whether the plaintiff wanted to assist him with tasks at the Aranda Church. He told the plaintiff’s parents that he would either drop the plaintiff home late in the evening or the plaintiff could spend the night at his presbytery house, and he would drop him home in the morning. The plaintiff’s parents did not have any issue with the plaintiff assisting Father Reynolds nor did they have any issue with him spending the night at the presbytery. The plaintiff said he believed this was because he would be with a member of the Church and recalled his mother advising him that “priests aren’t allowed to lie.”
27․The plaintiff recalled Father Reynolds driving the plaintiff in his white Toyota Crown to the Aranda Church. The plaintiff said that he assisted with handouts, which involved operating a crankshaft for a printing machine that produced pamphlets. The plaintiff said that he did this for approximately five minutes before Father Reynolds took him into another room and gave him a pair of pyjamas to wear and a toy to play with.
28․Father Reynolds then brought the plaintiff to his presbytery house located adjacent to the Aranda Church. The plaintiff said that Father Reynolds would play various activities with him such as indoor lawn bowls. Father Reynolds bought the plaintiff hot chips for dinner from the local fish and chip shop. The plaintiff recalled being excited to eat hot chips for dinner.
29․Father Reynolds told the plaintiff that he was going to stay overnight at his presbytery house. Father Reynolds told the plaintiff that he would have his own room to sleep in and provided the plaintiff with a pair of church pyjamas.
30․The plaintiff said that despite Father Reynolds’ assurances, Father Reynolds proceeded to sleep in the same bed as the plaintiff. The plaintiff said he initially did not think anything of Father Reynolds sleeping so close to him.
31․The plaintiff recalled waking up during the night and seeing his pyjama pants on the floor. The plaintiff said he felt Father Reynolds attempting to insert his erect penis into the plaintiff’s anus before proceeding to forcibly insert it and anally penetrating the plaintiff for approximately 10 minutes. The plaintiff recalled Father Reynolds ejaculating inside the plaintiff’s anus and falling asleep next to the plaintiff.
32․The plaintiff recalled that he was unable to fall asleep for approximately one hour as he felt horrible and believed that he was never going to be able to defecate again. The plaintiff recalled that he started crying but restrained himself from making sound so that Father Reynolds was not aware. The plaintiff said that he did not have a shower after Father Reynolds ejaculated inside of him as he was too afraid to move, shocked and unsure of what to do next. This meant that the plaintiff fell asleep with Father Reynolds’ ejaculate inside his anus.
33․The next morning, Father Reynolds did not provide the plaintiff with breakfast, and instead drove him straight home. The plaintiff had still not showered.
34․The plaintiff said that he did not tell his parents what had happened when he returned home as he was still in shock and did not understand what Father Reynolds had done to him.
Third instance of alleged sexual abuse
35․The plaintiff recalled that Father Reynolds visited his home again soon after and again asked for unpaid assistance with Church-related activities. The plaintiff said that these tasks included mowing the lawn at the Aranda Church or at nearby school grounds. The plaintiff said that his parents were happy for him to assist Father Reynolds.
36․The plaintiff recalled Father Reynolds directing him to mow the lawns of the Aranda Church with a ride-on lawn mower. The plaintiff recalled being excited as he thought using a ride-on lawn mower would be fun. He recalled imagining that the ride-on lawn mower was a race car and driving around the lawn doing tricks.
37․Once the plaintiff had completed mowing the lawns of the Aranda Church, he returned to Father Reynolds' presbytery house where they again had hot chips for dinner. Father Reynolds again provided the plaintiff with a pair of church pyjamas and directed the plaintiff to sleep in the same room as before. The plaintiff recalled tying up the drawstring of the pyjama pants around his waist as tightly as possible in an attempt to prevent Father Reynolds from pulling his pants down later. The plaintiff recalled Father Reynolds laying down in bed next to him and remaining awake and waiting for the plaintiff to fall asleep.
38․The plaintiff recalled waking up to Father Reynolds undoing the drawstring of his pyjama pants and pulling them down. He recalled Father Reynolds proceeding to forcibly insert his erect penis into the plaintiff’s anus and anally penetrate the plaintiff until ejaculating inside the plaintiff’s anus. The plaintiff recalled this being physically painful and hurting. The plaintiff recalled facing away from Father Reynolds and crying. The plaintiff said that again he did not have a shower after Father Reynolds ejaculated inside of him. The plaintiff recalled that he did not understand why this was happening to him.
Further instances of alleged sexual abuse
39․The plaintiff recalled that on one occasion he intentionally defecated in his pants while Father Reynolds drove them from the plaintiff’s home to the Aranda Church. The plaintiff said that he thought this would prevent Father Reynolds from penetrating his anus with his penis. The plaintiff said that Father Reynolds brought him to the toilet to clean him with toilet paper and then showered him. Father Reynolds then gave the plaintiff a pair of pyjamas, they had dinner, and went to sleep again in the same bed. During the night, Father Reynolds again forcibly inserted his erect penis into the plaintiff’s anus and anally penetrated the plaintiff.
40․The plaintiff recalled that on a number of the occasions when he slept overnight at the presbytery house, Father Reynolds provided the plaintiff with pills which the plaintiff thought were antihistamines to help him sleep despite having a runny nose. The plaintiff thought that Father Reynolds was attempting to give him sleeping tablets and would spit them out.
41․The plaintiff recalled that on a number of the occasions when he slept overnight at the presbytery house, Father Reynolds said that the plaintiff smelled and directed him to have a shower. Father Reynolds would disrobe to be completely naked and join the plaintiff in the shower. Father Reynolds would fondle the plaintiff’s penis and testicles and attempt to masturbate the plaintiff’s penis. The plaintiff estimated that this occurred on no less than five occasions.
42․The plaintiff recalled that on a number of the occasions when he slept overnight at the presbytery house, Father Reynolds would lie down naked on the bed and direct the plaintiff to lie down naked on top of him. Father Reynolds directed the plaintiff to place his penis between Father Reynolds’ closed legs and rock back and forth in a motion simulating sexual intercourse.
43․The plaintiff recalled that on almost every occasion when he was alone inside the Aranda Church with Father Reynolds, Father Reynolds would force the plaintiff to his knees prior to allowing him to leave. The plaintiff said that he believes Father Reynolds did this to “show God who he was fucking”.
44․The plaintiff said that Father Reynolds forcibly anally penetrated his anus on no less than 80 to 100 occasions in a similar process as described above. The plaintiff said that from 1966 to 1973, Father Reynolds would visit his home to pick him up and drive him to the Aranda Church at least once a month to three times a month.
45․The plaintiff said that on each occasion, Father Reynolds invited the plaintiff to the Aranda Church to provide assistance with tasks such as mowing the lawns, distributing hand-outs and bulletins, or preparing the Aranda Church for upcoming services. Father Reynolds would direct the plaintiff to sleep overnight at the presbytery house and then forcibly penetrate the plaintiff’s anus during the night. The plaintiff said that sometimes, but not always, Father Reynolds would wipe his ejaculate from the plaintiff’s anus with a piece of flannelette fabric.
46․The plaintiff said that he was did not know what to do to make the abuse stop. He recalled that Father Reynolds often told him that it was part of the job of a priest to teach boys his age about sex.
Impact of the sexual abuse on the plaintiff’s life
47․The plaintiff said that he was constantly getting into trouble throughout his schooling years. The plaintiff recalled that he felt the abuse was wrong. He said that believes he acted out in school in hopes of being punished and sent to jail to escape Father Reynolds’ abuse.
48․The plaintiff said that as a result of Father Reynolds’ abuse, he became increasingly poorly behaved at school and frequently committed truancy. This caused the plaintiff’s father to yell at him and demand to know why the plaintiff was no longer attending school. The plaintiff said that despite his father’s questioning, he never disclosed the abuse to his father, as the plaintiff felt that his father rarely listened to him, and it would be pointless to attempt to explain how the abuse he was suffering made him feel so bad.
49․The plaintiff said that he was frequently reprimanded by his high school and the Child Welfare Department for fighting at school and skipping school. The plaintiff said that these incidents came to a head when [redacted]. The plaintiff said he did this in an attempt to be arrested and sent to jail to be safe from further sexual abuse. As a result of this, the plaintiff said that he has a limited education and his reading and writing capacity was limited to a basic level.
50․After being expelled at age 14, the plaintiff did not return to school.
Employment history
51․After the plaintiff’s expulsion, he obtained employment as a [redacted] at [redacted]. The plaintiff was employed at [redacted] for 18 months and earnt approximately $27 per week.
52․In 1976, the plaintiff joined the [redacted], where he worked at [redacted] for three months, earning approximately $50 per week. Following this, the plaintiff obtained employment with [redacted] for a further three months, earning approximately $80 to $100 per week. The plaintiff then commenced work at [redacted] for a further three months, earning $80 to $100 per week.
53․From 1977 until 1979, the plaintiff worked at [redacted], earning approximately $70 per week. Following this, the plaintiff worked at [redacted] for two months, and [redacted] for eight months. The plaintiff earnt approximately $140 per week in these roles.
54․Between 1979 and 1983, the plaintiff received Centrelink benefits.
55․In or around 1983, the plaintiff was incarcerated for a period of approximately four months for [redacted]. The plaintiff has not otherwise been incarcerated.
56․Between 1983 and 1995, the plaintiff was a single parent and unemployed, with the exception of a period of four months in 1984 when he was employed at [redacted]. The plaintiff received a single parenting pension from Centrelink from approximately 1983 until 1997.
57․From 2007 to 2020, the plaintiff was a [redacted]. Throughout this period, the plaintiff was also employed at various times.
58․The plaintiff was also employed by [redacted] but cannot recall the dates of this employment.
Medical treatment
59․In 1995, the plaintiff’s physical health started deteriorating due to smoking. In 2000, he was diagnosed with lung cancer and had to have his upper left lung removed.
60․In relation to his mental health, the plaintiff has previously received treatment from [redacted], in relation to the abuse he suffered as a child. Upon [redacted] retirement, the plaintiff received [redacted] for a short period.
61․The plaintiff has been prescribed Aropax since approximately 2000.
62․In 2020, the plaintiff suffered from intense suicidal ideation and [redacted]. He was prescribed Seroquel.
Disclosure of the sexual abuse
63․The plaintiff recalled first disclosing the sexual abuse he had suffered to a friend in around 1977. He later made disclosures to people he was close with, such as his wife, children, and some of his siblings.
64․The plaintiff did not report the abuse to the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), the police, or ACT Child Protective Services. However, he said that he now wishes he had reported it to all of them.
Injuries and disabilities
65․The plaintiff said that the sexual abuse has had a significant and negative impact on his life. His mental health has suffered significantly, and he has suffered ongoing trauma.
66․As a result of Father Reynolds’ abuse, the plaintiff said he has suffered the following injuries and disabilities:
(a)post-traumatic stress disorder;
(b)major depressive disorder:
(c)anxiety;
(d)hyperarousal;
(e)hypervigilance;
(f)avoidant behaviour;
(g)social withdrawal;
(h)loss of faith;
(i)feelings of embarrassment and shame;
(j)increased tension in his neck;
(k)nightmares;
(l)flashbacks;
(m)general fear;
(n)reduced concentration and capacity to focus;
(o)ruminations about abuse;
(p)irritability;
(q)mood swings;
(r)short-temperedness;
(s)low moods;
(t)issues with anger management;
(u)insomnia;
(v)suicidal ideation;
(w)loss of libido;
(x)difficulty achieving and maintaining an erection;
(y)erectile dysfunction;
(z)overprotectiveness towards his children;
(aa)reduced capacity to engage in, build, and maintain relationships;
(bb)reduced quality and quantity of sleep;
(cc)reduced capacity to remain asleep;
(dd)reduced quality of education and corresponding reduced capacity to engage with education available; and
(ee)need for ongoing psychiatric and psychological treatment.
67․The plaintiff said that this list of injuries and disabilities is not exhaustive.
The execution of the Release
68․The plaintiff recalled that on or about 29 March 2006, he disclosed Father Reynolds’ abuse to the Church, lodging a formal Statement of Complaint.
69․The plaintiff said that an investigation was initiated by the NSW/ACT Professional Standards Office of the Church. The investigation was headed by Bishop Patrick Power, whom the plaintiff said was the Bishop of the Church for the Canberra area.
70․The plaintiff recalled telling Bishop Power that he had limited reading and writing ability and suffered from dyslexia. The plaintiff recalled that during one of his first meetings with Bishop Power he was directed into a room with a scribe who recorded his statement.
71․The plaintiff said that he became involved in two separate negotiations with Bishop Power about the monetary compensation the Church was willing to offer him as a result of the abuse. The plaintiff said that he never looked to engage a lawyer for these negotiations.
72․The plaintiff recalled that during the course of these negotiations, Bishop Power introduced him to a female solicitor whom Bishop Power said the Church had provided to the plaintiff due to his difficulties with reading and writing. The plaintiff said that he met the solicitor at a coffee shop in Canberra City where he told her about his limitations with reading and writing. The solicitor asked the plaintiff general questions about his life and what happened with Father Reynolds.
73․The plaintiff recalled that the solicitor did not explain to the plaintiff his rights, legal obligations, or the law as it stood at that time regarding any claim he may have for damages. The plaintiff said that he did not sign a letter of engagement or a contract with this solicitor, nor did he ever pay her any money.
74․The plaintiff said that he agreed to attend a meeting with Bishop Power to negotiate monetary compensation. He recalled that at this meeting, the solicitor would repeatedly have discussions with Bishop Power in a separate room and would not advise the plaintiff what they had discussed.
75․The plaintiff said that he has since been advised by his current lawyers that this woman was a facilitator or mediator and was not a solicitor provided by the Church to represent him in the negotiations.
76․The plaintiff recalled telling Bishop Power during the meeting that he did not own a nice car because of the way he was as a result of the abuse. The plaintiff recalled saying that he wanted one million dollars in compensation for what had happened to him, and after he spent that money, he wanted a further one million dollars. He said that Bishop Power offered him $20,000 to pay for a nice car. The plaintiff said he rejected this offer.
77․The plaintiff said that he made a counteroffer of $150,000 in response to which Bishop Power postponed the negotiations for one week so that he could speak to his colleagues.
78․A week later, the plaintiff said Bishop Power offered him $75,000. The plaintiff said he told Bishop Power he wanted $150,000. Bishop Power offered the plaintiff $100,000 (the Settlement Sum), which the plaintiff agreed to take if the money was given to him that week. The plaintiff recalled the solicitor expressing an opinion to him that the Settlement Sum was an offer the plaintiff should consider. The plaintiff said that he was told that there was some paperwork that needed to be completed, to which he agreed.
79․In agreeing to accept the Settlement Sum, the plaintiff said that he received no independent legal advice about the nature or value of his claim, his rights, legal obligations, or the law as it stood at that time regarding the claim. The plaintiff said he did not have a lawyer when he agreed to accept the Settlement Sum and had received no information from the ‘solicitor’ provided by the Church.
80․Prior to executing the Release, the plaintiff was directed by Bishop Power to go to a meeting with a man in Manuka in Canberra. The plaintiff did not know the man’s name or the purpose of the meeting. The man asked the plaintiff questions about his story and how he felt. The man did not provide the plaintiff with any legal advice and the plaintiff did not sign any documents with him.
81․Also prior to executing the Release, the plaintiff received a telephone call from an unknown male. The plaintiff does not recall the specific contents of the conversation other than that they spoke about Father Reynolds. The plaintiff recalled telling the man that Father Reynolds had told the plaintiff it was his job to teach young boys about sex and the man replied, “that's an old one, that's [what] they say”. The plaintiff worried that the telephone call was being recorded and hung up.
82․On 16 October 2006, approximately one month after the plaintiff orally agreed to accept the Settlement Sum, he attended a meeting with Bishop Power. The mother of the plaintiff’s daughters attended this meeting with him. The ‘solicitor’ was not present, nor was any other solicitor. The plaintiff signed three documents which he understood to be:
1.the plaintiff’s statement, which had been transcribed and co-signed by the scribe;
2.a document that the plaintiff believed permitted a police check to be undertaken; and
3.a document that recorded that the Settlement Sum had been given to the plaintiff and which had been signed by Bishop Power.
83․In relation to the second document, which I infer was the Release, the plaintiff understood that he needed to sign this document before he would receive the Settlement Sum. The plaintiff recalled Bishop Power suggesting he get this document witnessed by a “JP”. The plaintiff organised the document to be signed by a chemist in [redacted], where one of his sons was living at the time. The Release in evidence is witnessed by a chemist in [redacted].
84․There was no lawyer present when these documents were executed. No one explained the contents of these documents to the plaintiff before he signed them. He received no independent legal advice in relation to his rights, obligations, or the impacts of signing these documents. He did not receive any advice about his prospects in succeeding in a litigated claim or the nature of any of the documents executed. Nor was the plaintiff advised that he should seek independent legal advice.
85․The plaintiff said that he has since been advised by his solicitors that the second document he signed was in fact the Release. To the best of the plaintiff’s knowledge, no independent solicitor’s certificate was signed in relation to the execution of the Release.
86․The Release, which was in the form of a deed, contained the following recitals:
A. The Releasor has made a claim against the Releasee (“claim”) alleging that the Releasor suffered injury, loss and damage arising out of psychological and/or physical abuse that is alleged to have been caused by the late Father Lloyd Reynolds, Parish Priest, Aranda in the Australian Capital Territory between 1966 and 1974.
B. The Releasor and the Releasee have agreed to compromise the claim without any admission of legal liability by or on behalf of the Releasee in accordance with this Release.
87․The Release contained the following relevant terms:
5. Release
The Releasor releases and forever discharges the Releasee and the Releasee’s partners, servants, agents, successors and assigns from any and all liability whatsoever in relation to the claim or the contemplated proceeding or the matters the subject of the claim or the contemplated proceeding.
…
7. Acknowledgement by Releasor
The Releasor acknowledges:-
a) That prior to signing this Release he obtained independent legal and other expert advice or assistance, and
b) That he enters into this agreement fully.
8. Schedule
Releasee
In this Release the term “Releasee” includes the following persons and entities:-
1. The Archbishop and all current and past Clergy of The Catholic Archdiocese of Canberra and Goulburn.
2. All current and past staff, servants or agents of The Catholic Archdiocese of Canberra and Goulburn in particular of the Parish of Aranda in the Australian Capital Territory.
88․The plaintiff said that he received the Settlement Sum from the first defendant following the signing of the Release.
Advice about setting aside the Release
89․In early 2019, the plaintiff engaged his current solicitors at Maliganis Edwards Johnson (MEJ) to advise him in relation to his historical child sexual abuse compensation claim.
90․MEJ’s evidence was to the effect that at the time they were first consulted, their view was that there were no reasonable legal prospects for the plaintiff to set aside the Release.
91․That evidence is corroborated by the NSW Court of Appeal’s judgment in Magann v Trustees of Roman Catholic Church for Diocese of Parramatta [2020] NSWCA 167, in which the Court dismissed Mr Magann’s appeal from a dismissal of his application to the primary judge to set aside a settlement agreement entered into in relation to child sexual abuse under the provisions of the Contracts Review Act 1980 (NSW) or by reference to the doctrine of unconscionability.
92․In December 2022, the plaintiff was informed by MEJ that pt 8A.3 had been inserted into the Wrongs Act. He was informed that pt 8A.3 included s 114K(3) which allows the Court to set aside previously entered into abuse settlement agreements in certain circumstances.
93․Following that advice, the plaintiff instructed MEJ to commence these proceedings and to bring this application.
Sections 114I-114K of the Wrongs Act
94․Sections 114I-114K of the Wrongs Act, being a part of pt 8A.3, say:
114I Object—pt 8A.3
The object of this part is to provide a way, for a person who is the subject of a child abuse claim because the person suffered child abuse, to seek to have an abuse settlement agreement set aside if—
(a)when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or
(b)when the agreement is sought to be set aside the agreement is, in all the circumstances, not a just and reasonable agreement.
114J Definitions—pt 8A.3
(1)In this part:
abuse settlement agreement means an agreement—
(a)that settles a child abuse claim and prevents the exercise of an action on a cause of action to which the Limitation Act 1985, section 21C (Personal injury resulting from child abuse) applies; and
(b)that—
(i) happened before the commencement of the Limitation Act 1985, section 21C, and at a time when a limitation period applying to the cause of action had ended; or
(ii) happened before the commencement of this part, and the agreement is not just and reasonable in the circumstances.
applicant—see section 114K (1).
(2)For the definition of abuse settlement agreement, a limitation period that ended at a particular time is taken to have ended even if it were possible to seek the leave of a court to extend the period at the time the period ended.
114K Court may set aside abuse settlement agreement
(1)This section applies if a person (the applicant) is prevented from exercising an action on a cause of action because of an abuse settlement agreement.
(2)The applicant may—
(a)begin a proceeding on the cause of action in a court with jurisdiction to hear the proceeding; and
(b)apply to the court to set aside the agreement.
(3)The court may set aside the agreement if the court is satisfied that—
(a)when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or
(b)when the application is made to set aside the agreement, the agreement is, in all the circumstances, not a just and reasonable agreement.
(4)The court may consider the following in deciding whether to set aside the agreement:
(a)the amount paid to the applicant under the agreement;
(b)the bargaining position of the parties to the agreement;
(c)the conduct of the following people in relation to the agreement:
(i) a party other than the applicant;
(ii) a legal representative of a party other than the applicant;
(d)any other matter the court considers relevant.
(5)The Evidence Act 2011, section 131 (1) (Exclusion of evidence of settlement negotiations) does not prevent evidence being adduced in a proceeding begun under this section, even if the evidence is of a communication made, or a document prepared, in connection with an attempt to negotiate a settlement of the dispute to which the agreement relates.
The principles of statutory construction
95․In Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30, I summarised several general principles of statutory construction as I understood them at that time and understand them still to be. I said:
[101] The process of statutory construction begins and ends with the words of the statute. That oft-repeated mantra does not prescribe a rigid order of analysis. Rather, it serves to emphasise the primacy of the words used in the statute.
[102] Context must be considered in the first instance. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Brennan CJ, Dawson, Toohey and Gummow JJ, Gaudron J agreeing, said at 408:
Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
(Footnote omitted.)
[103] In Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 Allsop CJ said at [7] that that passage from CIC had been cited too often to be doubted and cited 15 joint or single judgments of the High Court in support of that proposition.
[104] With that said, the primacy of the words used in the statute and the process of statutory construction was described in the joint judgment of French CJ, Hayne, Crennan, Bell and Gageler JJ in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] wherein their Honours said:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
(Footnote omitted.)
[105] The first sentence of the quote which appears immediately above is a quote from the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ (as her Honour then was) in Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] wherein their Honours said:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
(Footnotes omitted.)
[106] I should add, for completeness, that in the ACT s 140 of the Legislation Act 2001 (ACT) requires that in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole, and s 139 requires that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
96․I would add that in R v A2 [2019] HCA 35; 269 CLR 507 (R v A2), Kiefel CJ and Keane J, with whom Nettle and Gordon JJ agreed, said the following at 520-522 [32]-[37]:
The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
(Citations omitted, emphasis added.)
97․In substance, Bell and Gageler JJ made the same observations. At 545 [124], their Honours said:
The principles of interpretation were not in issue on the hearing of the appeals. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of context in its widest sense and the purpose of the statute informs the interpretative task throughout. That consideration, and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words.
(Citations omitted.)
98․In the ACT (as is the case in other jurisdictions), s 142(1) of the Legislation Act 2001 (ACT) (Legislation Act) says that I may also take into account, in working out the meaning of an Act, any explanatory memorandum and the presentation speech. Each is considered below.
99․Section 142(1) says that I may also take into account any relevant report of a royal commission that was “presented” to the Legislative Assembly before the Act was passed. I do not know whether the two reports of the Royal Commission which I refer to below were “presented” to the ACT Legislative Assembly, but s 142(3) of the Legislation Act says that that section does not limit the material that may be considered in working out the meaning of an Act. Given the prominence of the Royal Commission’s work, the Minister’s statement quoted two paragraphs below, and the legislative response to the Royal Commission’s reports in every domestic jurisdiction,[1] I infer that the contents of those reports were known to Parliament and were relevant background material taken into consideration in drafting the relevant legislation.
[1] Civil Law (Wrongs) Act 2002 (ACT) pt 8A.3; Civil Liability Act 2002 (NSW) pt 1C; Limitation Act 1981 (NT) ss 53-55; Limitation Actions Act 1974 (Qld) s 48; Civil Liability Act 1936 (SA) pt 7B; Limitation Act 1974 (Tas) s 5C; Limitation of Actions Act 1958 (Vic) pt IIA div 5; Limitation Act 2005 (WA) ss 91-92.
100․Section 139(1) of the Legislation Act says that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
101․The purpose of the relevant provisions obviously stems from the work of the Royal Commission. Ms Rachel Stephen-Smith (then Minister for Aboriginal and Torres Strait Islander Affairs, Minister for Disability, Minister for Children, Youth and Families, Minister for Employment and Workplace Safety, Minister for Government Services and Procurement, and Minister for Urban Renewal) said in Parliament in respect of a bill implementing other recommendations of the Royal Commission relating to criminal offences (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 March 2019, 782) that:
The ACT government has committed to addressing each and every recommendation from the Royal Commission into Institutional Responses to Child Sexual Abuse.
The context to the legislation
102․On 14 September 2015, the Royal Commission published its Redress and Civil Litigation Report (the Redress Report): see Royal Commission into Institutional Responses to Child Sexual Abuse (Redress and Civil Litigation Report, September 2015).
103․In the Redress Report, the Royal Commission made 99 recommendations.
104․Some of those recommendations concerned legal difficulties which the Royal Commission had identified as having historically acted to the disadvantage of child abuse survivors seeking compensation for injuries and loss occasioned by the abuse suffered.
105․These difficulties included both legal and non-legal barriers.
106․As referred to in the Redress Report, the non-legal barriers which survivors faced included psychological barriers, symptom-based approaches to diagnosing mental disorders, living in remote Aboriginal and Torres Strait Islander communities, disabilities, coming from culturally and linguistically diverse communities, residing in regional and remote communities, mental health difficulties, homelessness, residing in correctional or detention centres, and low levels of literacy.
107․In relation to psychological barriers, the Royal Commission said at 450 of the Redress Report:
Survivors of child sexual assault face enormous barriers in disclosing. The impacts of child sexual assault typically mean that the victim does not disclose until they feel safe to do so, and this frequently does not occur until some time has passed.
108․At 444 of the Redress Report, the Royal Commission said:
Many survivors are unable to disclose their abuse until well into adulthood. Analysis of our early private sessions revealed that, on average, it took survivors 22 years to disclose the abuse. Men took longer than women to disclose abuse. These delays are not surprising. It is common for survivors who were abused in an institutional context to tell us that they were unable to report the criminal acts of a person who had authority over them. Their compromised psychological position often means they wrongly blame themselves for the abuse and are grossly embarrassed and ashamed, all of which make it difficult for them to tell anyone about the abuse for many years.
109․In relation to a symptom-based approach to diagnosing mental disorders, the Royal Commission said at 200 of the Redress Report:
We have been told that the symptom-based approach to diagnosing a mental disorder creates barriers for some survivors. Many survivors will present with a range of symptoms that meet some of the diagnostic criteria for a mental disorder – for example, anxiety, depression or PTSD. However, some survivors may not be able to articulate the impact of the trauma from their abuse or the extent of their symptoms sufficiently enough to demonstrate that they meet enough criteria in order to be diagnosed with a mental disorder.
110․Barriers of a legal nature referred to in the Redress Report included limitation periods, uncertainty in the law as to whether institutions owed non-delegable duties of care for another’s intentional tort, the inability to identify a proper defendant where an unincorporated association (such as a religious body) was involved, and institutions whose assets were held in a manner that makes them unavailable in a civil action brought by a survivor because, for example, the assets were held in a trust (see, for example, Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117; 70 NSWLR 565 (Ellis)).
111․In relation to settlement agreements entered into by child abuse survivors, the Royal Commission made no recommendations (outside those relating to the redress scheme), but noted at 389 of the Redress Report:
We recognise the difficulties many survivors have faced in dealing directly with representatives of the institution in which they were abused, being presented with deeds of release under time pressure and in some cases without the opportunity to obtain independent advice, and with little or no knowledge of what others in comparable positions had been offered or paid.
112․The Royal Commission made recommendations for the establishment and operation of a redress scheme, and said the following about limitation periods at 435:
Many survivors, survivor advocacy and support groups, lawyers and academics have told us that the existence of limitation periods acts as a significant barrier to survivors being able to commence civil litigation. They have told us that, although state and territory legislation often allows limitation periods to run from a time later than when the sexual assault itself occurred or to be extended by a court’s exercise of discretion, the existence of limitation periods may still create significant barriers for survivors.
113․At 436, the Royal Commission said:
Survivors who commence proceedings against institutions face the risk that the institutions will raise the limitation period issue and object to any extension.
These preliminary issues may take considerable time – even years – to resolve and may involve substantial legal costs.
114․Case Study No. 11 was a public hearing carried out by the Royal Commission that examined the legal process concerning limitation defences in a large number of proceedings that Slater and Gordon commenced in New South Wales and Victoria on behalf of a number of claimants who were former residents of the Congregation of Christian Brothers institutions in Western Australian: see Royal Commission into Institutional Responses to Child Sexual Abuse (Report of Case Study No. 11, December 2014). The Royal Commission summarised the tortuous path of those proceedings in the Redress Report at 437:
The summary of events reflects the difficulties survivors can face. From 1994 to 1996, these various proceedings involved interlocutory, or preliminary, hearings in New South Wales, Victoria and Western Australia; one appeal to the New South Wales Court of Appeal; and three applications for special leave to appeal to the High Court of Australia. The underlying claims of abuse were not heard or determined on their merits on any of these occasions.
115․The Royal Commission made the following recommendations concerning limitation periods at 459 of the Redress Report:
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.
…
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.
116․In relation to non-delegable duties of care, the Royal Commission made the following recommendation at 495:
89. State and territory governments should introduce legislation to impose a non-delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution
117․In relation to unincorporated bodies, institutions, and property trusts, the Royal Commission made the following recommendation at 511:
94. State and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings:
a. the property trust is a proper defendant to the litigation
b. any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.
118․The states and territories of the Commonwealth reacted. They passed legislation seeking to address those legal difficulties.
119․The ACT’s response, so far as is relevant to this application, was in three stages.
120․First, on 26 August 2016, amendments were made to the Limitation Act 1985 (ACT) (Limitation Act) by the Justice and Community Safety Legislation Amendment Act 2016 (No 2) (ACT) to insert s 21C, which removed the limitation period for actions for personal injury resulting from child sexual abuse (later amended to “child abuse” by the Justice and Community Safety Legislation Amendment Act 2022 (ACT)).
121․Second, on 28 September 2018, ch 8 of the Wrongs Act, headed “Institutional child abuse”, commenced operation. Chapter 8 had been inserted into the Wrongs Act by the Civil Law (Wrongs) (Child Abuse Claims Against Unincorporated Bodies) Amendment Act 2018 (ACT). These amendments addressed two of the four difficulties identified by the Royal Commission and referred to above, namely unincorporated bodies and institutions and property trusts.
122․Third, on 10 December 2022, pt 8A.3 of the Wrongs Act, headed “Institutional child abuse—setting aside abuse settlement agreements” commenced operation. Part 8A.3 had been inserted into the Wrongs Act by the Justice and Community Safety Legislation Amendment Act 2022 (ACT).
The submissions
Common ground
123․A number of conditions are required to be fulfilled in order for a plaintiff to set aside an abuse settlement agreement.
124․First, the relevant agreement must fall within the definition of “abuse settlement agreement” set out in s 114J of the Wrongs Act.
125․There was no dispute that the Release in this case fell within the definition of “abuse settlement agreement” as defined in s 114J(1) of the Wrongs Act. The Release:
(a)settled a child abuse claim and, by the operation of cl 5 of the Release, prevented the exercise of an action on a cause of action to which s 21C of the Limitation Act applied; and
(b)was entered into before the commencement of s 21C of the Limitation Act and after the limitation period applying to the cause of action had ended.
126․I note that s 114J(2) of the Wrongs Act says that for the definition of abuse settlement agreement, “a limitation period that ended at a particular time is taken to have ended even if it were possible to seek the leave of a court to extend the period at the time the period ended”.
127․Second, the terms of s 114K(1) of the Wrongs Act must be satisfied. That is, it must be proved that the plaintiff is prevented from exercising an action on a cause of action because of an abuse settlement agreement. Properly, the first and second defendants agreed that this was the case because of the terms of the Release, and particularly cl 5.
128․Third, the plaintiff must satisfy s 114K(2) of the Wrongs Act. In this case, the plaintiff had done so because he had begun a proceeding on the cause of action in a court with jurisdiction to hear the proceeding, being this Court, and had applied to set aside the agreement.
129․That brings me to the critical subsection, being s 114K(3) of the Wrongs Act, about which there was no agreement and no previous decision of this Court on its proper interpretation.
The plaintiff’s submissions on s 114K(3)
130․In relation to s 114K(3)(a) of the Wrongs Act, the plaintiff submitted that “legal barriers” referred to, and included, any potential legal defence (such as the expiration of a limitation period) or legal remedy (such as a permanent stay) which may have been available to the defendant at the time the settlement agreement was entered into. Other than making that contention, no substantive submissions were developed orally as to why that should be so in terms of text, context or otherwise.
131․I suggested in argument that perhaps “legal barriers” referred to actual legal barriers as opposed to potential legal barriers. For example, a limitation defence must be pleaded to be availed of (because it bars the remedy, not the right), and if a limitation defence were not pleaded in proceedings, it would not be considered in those proceedings. In that sense, at the time of the plaintiff’s settlement agreement, the limitation defence could be thought of as a possible barrier rather than an actual one. If and when pleaded, it would become an actual barrier.
132․The plaintiff disagreed that that was the appropriate interpretation of the words “legal barrier”.
133․As to the word “or”, the plaintiff submitted it should be literally construed and that there was no reason to construe it as meaning “and”.
134․In relation to s 114K(3)(b), the plaintiff cited JAS v Trustees of the Christian Brothers [2018] WADC 169; 96 SR (WA) 77 (JAS), and referred me to Sleight CJDC’s interpretation of “just and reasonable” as that expression appears in s 92 of the Limitation Act 2005 (WA), which gives a discretion to the court to set aside a previous judgment or settlement agreement of a previously settled child sexual abuse cause of action. I will return to his Honour’s reasons later in this judgment.
135․The plaintiff said a similar approach or interpretation was warranted for s 114K(3)(b) of the Wrongs Act and said that the facts of this case warranted the Release being set aside.
136․The plaintiff emphasised that at the time of the Release, the plaintiff, only basically educated, with reading and writing difficulties and with dyslexia, had settled his cause of action when he had no legal representation, was not advised to obtain legal representation, and at a time when, because of his reading difficulties, he thought the Release was a different type of document entirely.
137․In subsequent written submissions, the plaintiff drew my attention to a part of the Explanatory Statement that emphasised equality between survivors who had entered into abuse settlement agreements before the statutory reforms and those bringing their legal actions after those reforms had been enacted.
138․In the Explanatory Statement to the Justice and Community Safety Legislation Amendment Bill 2022 (ACT) (Justice and Community Safety Legislation Amendment Bill 2022), it said:
The Bill ensures that survivors who entered into unjust or unreasonable settlement agreements can have those agreements set aside and bring a new claim for compensation that is adequate, just and equitable by today's expectations. It places on equal footing those survivors who entered into settlement agreements before the ACT's earlier reforms, with those who benefited from the reforms.
The legislation is intended to give survivors trapped in a past unjust settlement access to damages according to what they would be assessed as deserving by the standards of today. Considerations of equality must be at the forefront of the decision makers mind -that is, everyone deserves the equal right to access justice, and survivors trapped in a past settlement must have access to the same damages as a survivor bringing their action today. It is intended this legislation operate to the benefit of survivors of institutional child abuse.
(Emphasis added.)
139․The plaintiff also drew my attention to the report of the Parliamentary Debate held in the Legislative Assembly on 22 November 2022 (which I am entitled to consider per s 142(1) of the Legislation Act), in which the Attorney-General said at 3594:
The bill will allow survivors to apply to the court to have a past settlement agreement set aside if, at the time the agreement was made, there were legal barriers to the survivor being fully compensated or if the agreement, in all the circumstances, is not a just and reasonable agreement. This is in recognition of the fact that many survivors gave up their ability to pursue just compensation due to being in an unfairly weakened bargaining position.
(Emphasis added.)
The defendant’s submissions on s 114K(3)
140․The defendant said it neither consented to nor opposed the plaintiff’s application.
141․Having said that, the defendant submitted that the term “legal barriers” in s 114K(3)(a) of the Wrongs Act could only be a reference to a legal defence or legal remedy available to a defendant and which the defendant had, in some formal way, conveyed to a plaintiff that that defence or remedy would be availed of at an appropriate time (such as if and when proceedings were commenced). Other than making that contention, no oral submissions were developed as to why that should be so.
142․In subsequent written submissions, the defendant submitted that there were two types of abuse settlement agreements. The first was an agreement which was entered into prior to the introduction of s 21C of the Limitation Act (being 26 August 2016) when a claim was out of time. The second was an agreement entered into prior to the commencement of pt 8A.3 of the Wrongs Act (being 10 December 2022) and which was not just and reasonable in the circumstances. That submission reflects the terms of
s 114J(2) of the Wrongs Act and may be accepted.143․I note that for agreements of the second type to be set aside, on the face of the text of the section, the agreement has to be held to be both not just and reasonable in the circumstances to fall within the definition in s 114J(1)(b)(ii), and also not just and reasonable in the circumstances under s 114K(3)(b). Quite what effect that duplication has need not be addressed in this case as the Release falls within the first type of abuse settlement agreement.
144․The defendant then submitted that ss 114K(3)(a)-(b) deal with each of these types of agreement respectively. That is, s 114K(3)(a) deals with agreements of the first kind and s 114K(3)(b) deals with agreements of the second kind.
145․I should say immediately that I do not accept that submission. Section 114J(1) defines abuse settlement agreements, and the defendant rightly says that there are two types of agreement that may fall within that definition. But s 114K(3) does not say that there are different tests for the two types of agreement. Rather, it specifies two sets of circumstances which may be applied to either type of agreement. It is expressed as applying to an “abuse settlement agreement” as defined, and does not distinguish between the two types of agreements described in s 114J(1).
146․The defendant then submitted that:
[A]n abuse settlement agreement of the first kind…would not be set aside unless the Court was satisfied that the fact that the claim was out of time was a legal barrier to the claim which prevented the applicant from being fully compensated for his or her cause of action.
(Emphasis in original.)
147․In other words, the defendant submitted that if a legal barrier was not actually relied on by a defendant, and if that barrier was not a material consideration to a plaintiff in entering into an abuse settlement agreement, then that agreement could not be set aside under s 114K(3)(a) of the Wrongs Act.
148․The defendant points to the definition of “barrier” in the Macquarie Dictionary (9th ed, 2023, def 3), which is “anything that restrains or obstructs progress, access, etc.”. The defendant submitted that that definition suggests that there must be something tangible which has the effect of restraining or obstructing. If a limitation defence was not being relied upon, it would not obstruct or restrain the settlement negotiation from the applicant’s point of view.
149․The defendant accepted that context and purpose were matters to take into account in the interpretation of the section, as well as, of course, the text.
150․The defendant drew to my attention to excerpts from the Presentation Speech and Explanatory Statement to the Justice and Community Safety Legislation Amendment Bill 2022 which use the expressions “unjust child abuse settlements”, “unjust institutional child abuse settlement agreements” and “unjust or unreasonable settlement agreements”: see, for example, Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 9 June 2022, 1928 (Shane Rattenbury, Attorney-General).
151․The defendant submitted that if Parliament had intended that all that was required for an agreement to be set aside pursuant to s 114K(3)(a) of the Wrongs Act was the existence of a legal barrier, without more, it would simply have given the Court the power to set aside all abuse settlement agreements, and would not have used the additional words “to the person being fully compensated” in s 114K(3)(a). The defendant submitted that some work must be given to those quoted words, and the only way to do that is if the intention is that the legal barrier causes the applicant to receive less than full compensation. The defendant submitted that it was against common sense that a person who was fully compensated for a claim despite the claim being out of time would have the right to set it aside.
152․The defendant submitted that, whilst the plaintiff was clearly relying on s 114K(3)(b), it was not clear whether the plaintiff was also relying on s 114K(3)(a). I do not agree. As I understood it, the plaintiff was relying upon both parts of ss 114K(3)(a)-(b). For example, in addition to his submissions on s 114K(3)(b), the plaintiff’s written submissions dated 5 December 2023 made clear that he was also relying upon s 114K(3)(a).
153․The defendant submitted that, in substance, s 114K(3) sought to create a level playing field between plaintiffs who are now able to bring claims, for example, freed from the previous limitation periods, with those whose claims in the past were subject to them. I agree with that submission (and it is consistent with the express statements made about “equality” referred to above) save that I would not confine it to limitation periods.
154․Section 114K(3) refers to “legal barriers”, and barriers of a legal nature referred to in the Redress Report included not only limitation periods, but also barriers such as the uncertainty in the law as to whether institutions owed non-delegable duties of care for another’s intentional tort, the inability to identify a proper defendant where an unincorporated association (such as a religious body) was involved, and institutions whose assets are held in a manner that made them unavailable in a civil action brought by a survivor because, for example, the assets were held in a trust (the latter becoming known as the Ellis defence).
Decision
Discretion and the Court’s satisfaction
155․A settlement agreement may fall within one or both limbs of the definitions of “abuse settlement agreement” in s 114J.
156․Subsection 114K(3) begins:
…
(3)The court may set aside the agreement if the court is satisfied that—
…
157․The use of the word “may” indicates a discretion, and the words “if the court is satisfied” indicate that even if there is consent from a defendant, the court is still required to be satisfied of the necessary matters before an order setting aside an abuse settlement agreement can be made.
The interpretation of 114K(3)(a)
158․The subsection focuses attention on the time when the abuse settlement agreement was entered into. In this case, that time is 16 October 2006.
159․The term “legal barriers” is not defined in the Wrongs Act, nor in the Legislation Act.
160․The term does not appear in any other legislation that I can find other than in s 7B(b) of the Civil Liability Act 2002 (NSW) (CLA) and state and territory legislation dealing with the sale of goods and the Vienna Convention on the Law of Treaties: see, for example, sch 1 of the Sale of Goods (Vienna Convention) Act 1987 (ACT).
161․Section 7B(b) of the CLA simply describes the operation of pt 1C of the CLA, in which
s 7B is found. Section 7B says:7BObject of Part
The object of this Part is to provide a way for a person to seek to have an agreement set aside if—
(a)the agreement settled a claim for child abuse perpetrated against the person, and
(b)at the time of the agreement, there were certain legal barriers to the person being fully compensated through a legal cause of action.
162․However, in the operative parts of the CLA which follow, the only ground available to set aside an abuse settlement agreement is s 7D(2), which provides:
…
(2)The court may set aside an affected agreement if it is just and reasonable to do so.
…
163․There are as yet no decisions of any NSW court on those provisions.
164․Neither the Explanatory Memorandum nor the Presentation Speech to the Justice and Community Safety Legislation Bill 2022 offer any direct guidance as to the meaning of “legal barriers”.
165․If I turn to dictionary definitions, which assist but do not govern statutory interpretation, the word “legal” is of clear enough meaning. It means “of or relating to law” (Macquarie Dictionary (9th ed, 2023, def 2)), or “required by law”, or something similar.
166․The word “barrier” in one dictionary means an obstacle that prevents movement or access, a circumstance or obstacle that keeps things apart or prevents progress. The defendant’s dictionary defines it as “anything that restrains or obstructs progress, access, etc.: Macquarie Dictionary (9th ed, 2023, def 3).
167․There is nothing in the text or context of the Wrongs Act which really points one way or the other, at least that I can see, as to whether “legal barriers” means potential or actual barriers.
168․However, if I interpret that term in the context (as described by the High Court in R v A2), including the mischief to which the legislation was directed, I think the better view is that “legal barriers” means any legal defences or remedies, potential or actual, which are reasonably available to a defendant. By potential, I mean that there are reasonable (in the sense of being non-fanciful) grounds for a defendant to avail him, her or themselves of a defence or remedy, such as a limitation defence, the Ellis defence, an argument that an institution was not subject to a non-delegable duty of care in respect of another’s intentional tort, or a denial of identity of a proper defendant (to take examples mentioned by the Royal Commission).
169․I do not think the term is confined to legal barriers that a putative defendant has notified a plaintiff that he, she or they will turn to at an appropriate time as that does not seem to me to meet the remedial aims of the provision, nor its policy or purpose.
170․In the Redress Report, the Royal Commission distinguished between barriers of a legal and non-legal kind. I have mentioned them above. Nowhere in the Redress Report that I can find does the Royal Commission distinguish between potential and actual legal barriers. Rather, they were discussed in the sense of being real, actual barriers standing in the way of otherwise deserving plaintiffs obtaining full compensation.
171․One example referred to by the Royal Commission in the Redress Report at 425 is the mere existence of limitation periods as distinct from limitation defences being raised:
Many survivors, survivor advocacy and support groups, lawyers and academics have told us that the existence of limitation periods acts as a significant barrier to survivors being able to commence civil litigation.
(Emphasis added.)
172․Similarly, the Royal Commission said in the Redress Report at 52:
Limitation periods are a significant, sometimes insurmountable, barrier to survivors pursuing civil litigation.
(Emphasis added.)
173․In the Presentation Speech to the Justice and Community Safety Legislation Amendment Bill 2022 (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 9 June 2022, 1929), the Attorney-General said:
As I have alluded to, this bill includes two significant reforms to remove legal barriers that provide a clear pathway for access to justice for survivors of child abuse. First, the bill will allow survivors to apply to the court to have a past settlement agreement set aside if, at the time the agreement was made, there were legal barriers to the survivor being fully compensated or if the agreement in all the circumstances is not a just or reasonable agreement.
174․The “clear pathway” referred to therein would more readily be achieved by removing all potential defences and remedies, rather than only removing defences a defendant had drawn to a plaintiff’s attention.
175․The Attorney-General also drew a distinction between legal and non-legal barriers when he said at 1930:
The latter subsection is important, as it recognises that not all barriers faced by survivors that resulted in unjust settlements were legal barriers. This broad approach is intended to result in greater rights for survivors. It reflects what we heard from survivors during the targeted consultation process for the bill: that it was not just legal barriers that prevented survivors from being appropriately compensated.
176․Perhaps more tellingly, the Attorney-General said at 1930:
The ACT government has heard from survivors and advocates that circumstances that resulted in unjust settlements include but are not limited to the expiry of a limitation period; the inability to identify a proper defendant; deficiencies in the law of liability at the time, including lack of clear, vicarious liability of institutions for intentional wrongs of an employee, or a person akin to an employee; misconduct of the institution—for example, withholding evidence, making false statements, denying things which they knew were true et cetera; asymmetry of power between the parties; misconduct or weak conduct by the victim’s own lawyer; and inadequate understanding by the court of abuse and the effect of abuse.
(Emphasis added.)
177․The interpretation of “legal barriers” as including potential defences would more closely reflect the reality of pre-litigation negotiations when it may not be known what defences a defendant may raise.
178․The Explanatory Statement to the Justice and Community Safety Legislation Amendment Bill 2022 said at 4:
The ACT Government implemented reforms in the civil litigation and redress space following the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) which included removing limitation periods for child sexual abuse claims. Prior to these reforms many child abuse survivors entered into unfair settlement agreements. Most of these survivors are barred from seeking further compensation as their agreements generally released the institution from any further claims. While the ACT’s reforms to date have removed significant barriers to civil litigation for survivors of institutional child abuse, they do not deal with the unjust products of the previous barriers, which led to survivors accepting inadequate settlements and releasing institutions from future liability.
179․That passage conveys to me two things. First, that the amendments were intended to adopt the Royal Commissions’ approach to removing barriers of any description, and second, that one problem being addressed was the unjust agreements entered into after limitation periods had expired but before any litigation commenced.
180․For example, the Royal Commission said in the Redress Report at 96:
Where civil litigation has settled, many survivors have told us that the settlement payments were inadequate and that legal technicalities forced them to accept these settlements without ever having their claims determined on their merits.
(Emphasis added.)
181․The possibility of a limitation period applying may obviously be a negotiating point, a fact the Court is aware of from its own experience and as was recognised by the Royal Commission. At 457 of the Redress Report, the Royal Commission was discussing whether limitation periods should be extended rather than abolished. It said:
Defendants in settlement negotiations could still use even extended limitation periods to reduce a settlement if the claim was outside the extended period.
182․At 514 of the Redress Report, the Royal Commission said:
Departments should ordinarily not rely on a defence that the limitation period has expired, either formally (for example in pleadings) or informally (for example in the course of settlement negotiations).
(Emphasis added.)
183․It is not without importance that s 114K(3)(a) of the Wrongs Act refers to barriers preventing a plaintiff being “fully” compensated. Thus, the expiry of a limitation period would be a barrier to full compensation in that it would or could be a negotiating point reducing the compensation eventually agreed from that which would be regarded as full compensation.
184․In the Explanatory Statement to the Justice and Community Safety Legislation Amendment Bill 2022, the Attorney-General referred to the importance of equality between survivors who had entered into abuse settlement agreements before the statutory reforms had been enacted and those bringing their legal actions after those reforms had been enacted.
185․One statutory reform was the complete removal of the limitation period in these types of cases by the insertion of s 21C into the Limitation Act.
186․Equality of the sort referred to by the Attorney-General in the Explanatory Statement to the Justice and Community Safety Legislation Amendment Bill 2022 would seem to me to dictate that the provisions being examined operate in a way such that a potential limitation defence would be regarded as a legal barrier for the purposes of s 114K(3)(a). Only in that way could survivors who had entered into abuse settlement agreements before the statutory reforms had been enacted be treated equally to those bringing their legal actions after those reforms had been enacted and at a time when there was no potential limitation defence.
187․The report of the Parliamentary Debate held in the Legislative Assembly on 22 November 2022 (quoted above) also spoke of unfairly weakened bargaining positions. An unfairly weakened bargaining position, compared to survivors who may bring a claim after the statutory reforms, would seem to me to include circumstances where a defendant may be able to plead a limitation defence if proceedings were commenced.
188․A potential limitation defence is expressly referred to in s 114J(2) of the Wrongs Act, which says:
…
(2)For the definition of abuse settlement agreement, a limitation period that ended at a particular time is taken to have ended even if it were possible to seek the leave of a court to extend the period at the time the period ended.
189․That subsection indicates to me that Parliament more likely intended “legal barriers” to include potential defences so that, consistently throughout the provisions, potential defences would not stand in the way of any remedy the provisions offered.
190․It is true, I think, that interpreting “legal barriers” to include potential defences has the effect that s 114K(3)(a) of the Wrongs Act has a wide operation, but it is not as wide as the defendant suggested.
191․It is to be remembered that the provisions address a closed class of cases, namely being those in which the cause or causes of action arose prior to the amendments (which include the insertion of pt 8A.2 of the Wrongs Act concerning the liability of unincorporated associations and the Ellis defence, for example).
192․The defendant submitted that if Parliament had intended that all that was required for an agreement to be set aside pursuant to s 114K(3)(a) was the existence of a legal barrier, without more, it would simply have given the Court the power to set aside all abuse settlement agreements. I do not agree. If, for example, a defendant in the defendant’s shoes in this case had formally notified the plaintiff that it would not plead the limitation defence (or raise any other legal barrier), then, prima facie, s 114K(3)(a) would not apply. Thus, there might be circumstances where no legal barriers stood in the way of full compensation.
193․The defendant submitted that some work needs to be given to the words “to the person being fully compensated” in s 114K(3)(a). The defendant submitted that the only way to do that is if the intention is that the legal barrier causes the applicant to receive less than full compensation. The defendant submitted that it was against common sense that a person who was fully compensated for a claim despite the claim being out of time would have the right to set it aside.
194․There are two responses to that submission.
195․First, because the power to set aside an abuse settlement agreement is discretionary, a court could refuse to set aside any agreement where it was satisfied that a plaintiff had received full compensation notwithstanding the existence of legal barriers.
196․Second, there is work being done by the quoted words in the interpretation I prefer. Those words refer to the object of the provision, not a result. That is, they identify the thing (the object) which legal barriers may affect. Or put another way, the provision asks whether there existed legal barriers which stood between a plaintiff and full compensation.
197․For all of those reasons, I am of the view that “legal barriers” includes potential defences and remedies (being reasonably, in the sense of non-fancifully, available to a defendant) whether they are notified by a putative defendant to the plaintiff or not.
198․That interpretation seems to me to best achieve the policy and purpose of s 114K(3)(a) as I perceive it from the materials I have mentioned and in accordance with s 139 of the Legislation Act. The interpretation I prefer means that pre-reform survivors will be in no worse position than post-reform survivors and will be equal with them; an evident purpose sought to be achieved by s 114K of the Wrongs Act.
199․As was said in the Explanatory Statement to the Justice and Community Safety Legislation Amendment Bill 2022 at 4:
The Bill … places on equal footing those survivors who entered into settlement agreements before the ACT's earlier reforms, with those who benefited from the reforms.
The word “or”
200․Sometimes the word “and” is read as “or”, and vice versa: see DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 6th ed, 2006) [2.25]-[2.27]. Sometimes that has occurred because a court determined that there were compelling reasons for concluding that there was a drafting or printing error. Other times, that has occurred because, although there was no drafting or printing error, the court nevertheless determined that the context in which the word appeared dictated that conclusion.
201․I see no reason, yet alone any compelling reason, for concluding that there was a drafting or printing error in this legislation, and none was suggested in submissions.
202․I also see no textual, contextual or purposive reason for concluding that “or” should be read as “and”. Indeed, the context and evident purpose of the provision suggest to me that the word “or” was deliberately used.
203․I have mentioned earlier the distinction drawn by the Royal Commission between legal and non-legal barriers. It seems to me that “or” was used deliberately so the two parts of s 114K(3) would address two different, although partly overlapping, sets of circumstances.
204․In the first set of circumstances, those addressed by s 114K(3)(a), any child abuse survivor who entered into an abuse settlement agreement at a time when there were legal barriers preventing full compensation could have that agreement set aside.
205․In the second set of circumstances, those addressed by s 114K(3)(b), those survivors who entered into such an agreement when there were no legal barriers, but the abuse settlement agreement would be viewed as being not just and reasonable (because of, for example, the existence of non-legal barriers) at the time of the application, could have the agreement set aside.
206․In my view, the purpose of the provision is better met by the word “or” having its literal meaning. I see no warrant for thinking that Parliament intended that only survivors who faced legal barriers and who could demonstrate at the time of the application that the settlement agreement was not just and reasonable could have their abuse settlement agreement set aside.
207․Such an interpretation would disenfranchise those survivors who did not face legal barriers at the time they entered into their agreement, but nevertheless faced non-legal barriers which led to an agreement that would otherwise be regarded as not just and reasonable.
208․The Royal Commission and the ACT Legislative Assembly was concerned with equality between survivors. In the following passage, the Royal Commission was addressing the redress scheme, but the balance of the Redress Report contains an undercurrent of equality between survivors. The Royal Commission said at 4:
We accept the importance to survivors of equality in this sense. We accept that many survivors and survivor advocacy and support groups will not consider any approach to redress that we recommend to be capable of delivering ‘justice’ unless it seeks to achieve equality or fair treatment between survivors.
209․The Explanatory Statement to the Justice and Community Safety Legislation Bill 2022 said the following about the setting aside of abuse settlement agreements at 5:
The ACT Government has heard from survivors and advocates that circumstances that resulted in unjust settlements include but are not limited to:
• Expiry of a limitation period
• Inability to identify a proper defendant
• Deficiencies in the law of liability at the time (including lack of clear vicarious liability of institutions for intentional wrongs of an employee – or person akin to an employee)
• Misconduct of the institution (eg withholding evidence, making false statements, denying things which they knew were true, etc)
• Asymmetry of power between the parties
• Misconduct or weak conduct by the victims’ own lawyer
• Inadequate understanding by the court of abuse and the effect of abuse
This Bill will provide the court with the power to consider settlements entered into because of any of these factors, or any combination of these factors, and to set them aside.
It is important that there is clarity around the types of injustices that are able to be set aside, for applicants, respondents and the court. This legislation should not be weaponised in such a way that re-victimises a survivor, and makes it more onerous that necessary, to give the survivor access to the justice they have denied for so long.
The court can commence its consideration of the application from a place of accepting that survivors, their advocates, and the Royal Commission, have unequivocally demonstrated that many past settlement agreements were unjust and unreasonable and accordingly there should be a low threshold for setting them aside.
Original settlement agreements should be viewed as tarnished by the unjust circumstances of their creation and not as final and unable to be set aside. This will not create a concerning precedent around the finality of agreements – because these agreements are intended to be set aside for this cohort, to remedy the mischief created by the unjust settlement.
(Emphasis added.)
210․In that passage was an express reference to being able to set agreements aside because of “any of these factors”. That must mean any of the factors considered alone, which leads to the conclusion that legal barriers alone would be sufficient to set aside abuse settlement agreements.
211․That conclusion is further supported by the fact that the Explanatory Statement (quoted above) explained that the threshold to set aside agreements should be low. That aim is achieved by reading the word “or” in its literal sense.
212․For all of those reasons, the word “or” should be read literally.
The interpretation of 114K(3)(b)
The time for assessment
213․Section 114K(3)(b) says that the court may set aside an abuse settlement agreement if satisfied that, when the application is made to set aside the agreement, the agreement is held to be, in all the circumstances, not a just and reasonable agreement.
214․Two things may be immediately noted.
215․First, the subsection says that the court may set aside the agreement if the court is satisfied that when the application is made to set aside the agreement, the agreement is, in all the circumstances, not a just and reasonable agreement. That language means that the time when a court makes a judgment whether an agreement is not a just and reasonable agreement is at the time of the application, not at the time the agreement was entered into.
216․Needless to say, circumstances existing at the time of the entry into the agreement will be relevant, but nevertheless the time at which the assessment is to be made is at the time of the application. Logically, this would appear to apply present-day standards to the agreement and thus avoid any possible argument that, at the time the agreement was entered into, there was nothing unjust or unreasonable about it judged by the standards of the time.
The agreement must not be just and reasonable
217․Second, the subsection directs attention to whether the agreement is just and reasonable, not whether it is just and reasonable to set aside the agreement. In this respect, the ACT legislation differs from that in all other domestic jurisdictions.
218․The statute says that the matters to be taken into account in deciding whether an agreement is not just and reasonable include those set out in s 114K(4), which says:
…
(4)The court may consider the following in deciding whether to set aside the agreement:
(a)the amount paid to the applicant under the agreement;
(b)the bargaining position of the parties to the agreement;
(c)the conduct of the following people in relation to the agreement:
(i) a party other than the applicant;
(ii) a legal representative of a party other than the applicant;
(d)any other matter the court considers relevant.
…
219․Another matter worthy of note is that the wording of the provision is such that the plaintiff bears the onus of persuading a court that an abuse settlement agreement should be set aside. That positive burden on the applicant is not of any great severity perhaps, but it nevertheless is a positive burden which the applicant must satisfy.
Other jurisdictions – one significant difference
220․Legislation addressing the same or similar matters has been introduced in every domestic jurisdiction in Australia, including:
(a)pt 1C of the Civil Liability Act 2002 (NSW);
(b)ss 53-55 of the Limitation Act 1981 (NT);
(c)s 48 of the Limitation of Actions Act 1974 (Qld);
(d)pt 7B of the Civil Liability Act 1936 (SA);
(e)s 5C of the Limitation Act 1974 (Tas);
(f)pt IIA div 5 of the Limitation of Actions Act 1958 (Vic); and
(g)ss 91-92 of the Limitation Act 2005 (WA).
221․However, as mentioned above, the legislation in those other jurisdictions is different in at least one important respect. That is, in those other jurisdictions, the general power given is to set aside an abuse settlement agreement (such agreements are given different names but are generally the same thing) if it is “just and reasonable to do so”. In the ACT, the abuse settlement agreement may be set aside if the agreement itself is not just and reasonable.
222․Because of that difference, the few authorities which have dealt with applications under those equivalent provisions are of limited use as to the content of the test of whether an agreement is not just and reasonable for the purpose of s 114K(3)(b) of the Wrongs Act. Nevertheless, they are of some use because the birth parent of all of the legislation was the Royal Commission and its reports.
223․In NSW, there have been no authorities yet on the application of s 7D of the CLA.
224․In Victoria, there have been a number of cases. Probably the most significant in terms of the issues I have to decide are WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639 (WCB (No 2)) and the refusal of leave to appeal from that decision in Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328; 62 VR 234.
225․In Queensland, the most relevant decisions are TRG v Board of Trustees of the Brisbane Grammar School [2019] QSC 157 (TRG) and the appeal, TRG v Board of Trustees of the Brisbane Grammar School [2020] QCA 190; 5 QR 440.
226․In Western Australia, the most relevant case is JAS.
227․I shall briefly discuss those authorities to the extent that they assist me in determining the meaning of s 114K(3)(b) of the Wrongs Act.
Victoria
228․The central provision in Victoria is s 27QD of the Limitation of Actions Act 1958 (Vic), which says:
27QD Application to court to set aside previously settled causes of action
(1)This section applies to an action referred to in section 27QA(2).
(2)In a proceeding to which this section applies, application may be made to the court for the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action to be set aside.
(3)A court other than the Supreme Court may not set aside a judgment or an order of another court.
229․In WCB (No 2), the plaintiff alleged that in the period 1977 to 1980, when he was between the ages of about 11 and 14, he was repeatedly sexually abused by a priest in the Warragul Catholic Church within the Catholic Diocese of Sale. He commenced proceedings claiming damages for personal injury suffered as a consequence of the abuse.
230․Earlier, in 1996, the plaintiff had made a claim against a Bishop of the Catholic Diocese of Sale in relation to the abuse in a proceeding issued in the County Court of Victoria. That proceeding settled, and the plaintiff and that Bishop entered into a Deed of Release. In the proceedings before Keogh J, which WCB (No 2) concerns, the defendant pleaded that the plaintiff’s claim was barred by the Deed of Release. The plaintiff applied under
s 27QD of the Limitation of Actions Act 1958 (Vic) to have the Deed of Release set aside, and the related paragraphs of the defence struck out.231․In WCB (No 2) at [124], Keogh J made this pertinent point:
There will almost be a presumptive inference that a previous settlement entered into, in the context of legal barriers which rendered an otherwise good cause of action into one which would probably or certainly fail, will be set aside. The plaintiff submitted:
“Put another way, how could it not be just and reasonable to permit someone who settled a case for significantly less than its worth, for reasons beyond their control, to pursue fair and just reparation for sexual abuse inflicted upon them as a child, and for its life long consequences? It would be a rare case that would not qualify.”
The question to be answered is whether the plaintiff has demonstrated the justice and reasonableness of being able to bring a claim for fair compensation.
232․It is difficult to fault his Honour’s logic.
233․Keogh J also said in WCB (No 2) at [130] that in determining what is just and reasonable, the Court’s primary concern should be the circumstances in which the settlement agreement was created, and the consequences for each party if the court alters the rights embodied in the settlement agreement. In my view, that statement would apply to the Wrongs Act, given its wording.
234․Keogh J also held at [152]-[154] that the rationales that underpin and inform the legislative purpose of provisions which impose limitation periods, and those giving the court power to extend time, do not apply to the Limitation of Actions Act 1958 (Vic) because there was no longer any limitation period applicable to a cause of action for child sexual abuse.
235․Keogh J set aside the settlement agreement in WCB (No 2), and the defendant sought leave to appeal.
236․The application for leave to appeal was refused: Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328; 62 VR 234. In that case, the Victorian Court of Appeal noted the following about the term “just and reasonable” at 264 [104]:
The phrase ‘just and reasonable’ is of broad ambit. Orthodox principles of statutory construction require that it should not be understood in isolation, divorced from the legal context in which it was enacted. In order to determine whether, in a particular case, it is ‘just and reasonable’ to make an order setting aside the settlement agreement, it is necessary to understand and take into account the historical context in which that provision was enacted in 2019, so as to properly understand its purpose and effect.
237․So here. The context to which I have referred provides an appropriate guide to understanding the purpose and intention of s 114K(3)(b) of the Wrongs Act and the content of the phrase “just and reasonable” in addition to the statutory mandate provided by s 139 of the Legislation Act, which says that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
Queensland
238․The central provision in Queensland is s 48(5A) of the Limitation of Actions Act 1974 (Qld), which says:
…
(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.
…
239․In TRG, Davis J was asked to exercise the discretion under that section to set aside a settlement agreement. In 2001, the applicant had sued the respondent for damages for personal injuries (including psychiatric and psychological damage) suffered as a result of child sexual abuse. The proceedings were settled in late 2002 by written agreement and the applicant was paid a sum of money. The applicant applied for an order setting aside the settlement agreement so that he might commence fresh proceedings against the respondent for damages.
240․Davis J refused the application. There were notable differences between that case and the present. For example, in TRG the applicant had commenced litigation, was legally represented, and the case settled at a mediation for a sum which was, as Davies J described at [279]:
[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.
241․Nevertheless, and not overlooking that fact that the Queensland legislation is different to the ACT legislation, as I have mentioned earlier, Davis J touched on some matters relevant to the present case.
242․The first was that his Honour considered that s 48(5A) of the Limitation of Actions Act 1974 (Qld) required the Court to consider the parties’ competing interests and to strike a balance between them, the balance being what is “just and reasonable”: see TRG at [154]. That requirement does not exist under s 114K of the Wrongs Act in my view. That is because of the difference I have previously mentioned, namely, that in Queensland (as elsewhere) the power given is to set aside an abuse settlement agreement if it is “just and reasonable to do so” rather than, as in the ACT, the power is to be exercised if the agreement is held to be not just and reasonable.
243․The second is that Davis J held that s 11A of the Limitation of Actions Act 1974 (Qld) – being the equivalent to s 21C of the Limitation Act – manifested a legislative intention that the interests of applicants should prevail without any restriction as to when the proceedings were commenced, and that prejudice to a defendant caused by delay was largely irrelevant (although a defendant could rely upon delay in an application for a stay of the proceedings and in the forensic contest in which the plaintiff attempted to prove the claim): see TRG at [151]. That expresses much the same conclusion as Keogh J did in WCB (No 2) at [152]-[154].
244․The appeal from TRG was conducted on limited grounds and was dismissed: see TRG v Board of Trustees of the Brisbane Grammar School [2020] QCA 190; 5 QR 440. The first conclusion of Davies J was challenged on appeal, but the challenge was dismissed, and the second conclusion was not challenged on appeal at all.
Western Australia
245․The central provision in Western Australia is s 92(3) of the Limitation Act 2005 (WA), which says:
…
(3)The court may, if satisfied that it is just and reasonable to do so —
(a)grant leave to commence the action, subject to conditions; and
(b)to the extent necessary for that, set aside the settlement agreement and any judgment giving effect to the settlement.
…
246․In JAS, Sleight CJDC was asked to set aside a settlement agreement which would otherwise have prevented a claim for damages being made for personal injuries resulting from the sexual abuse of a child. The application was based on s 92 of the Limitation Act 2005 (WA).
247․Section 92 of the Limitation Act 2005 (WA) does not set out any criteria that the court must or may consider when determining what is “just and reasonable”, but, again, one must keep in mind that s 92 is directed to whether it is just and reasonable to set aside the agreement, not whether the agreement is just and reasonable (as is the case in the ACT).
248․His Honour analogised from authorities concerning the extension of limitation periods because the expression “just and reasonable” is often found in statutes dealing with that issue.
249․Thus, his Honour considered that the applicant bore the onus of proving the agreement was not just and reasonable: see JAS at 83 [20].
250․His Honour also relevantly held that:
(a)each case involved an evaluative judgement of the relevant facts and circumstances (see JAS at 83 [20]);
(b)all the rationales for statutory time limitations were irrelevant because there is no longer a limitation period for child abuse claims (see JAS at 83 [21]); and
(c)the evaluative judgment to be made under s 92 should take into account the remedial principles which were obviously intended by the amendments to the Limitation Act 2005 (WA): see JAS at 84 [26].
The operation of “just and reasonable” in s 114K(3)(b)
251․Taking primarily into account the text and context (as described by the High Court in R v A2) of the provision, in my view, s 114K(3)(b) of the Wrongs Act operates as follows.
252․In terms of whether an agreement is, in all the circumstances, not a just and reasonable agreement, that assessment is to be made at the time of the application (and in accordance with prevailing standards) and not at the time the agreement was made.
253․The question in s 114K(3)(b) of the Wrongs Act is whether in all the circumstances an agreement is assessed to be not just and reasonable, and not, as in other domestic jurisdictions, whether in all of the circumstances it is just and reasonable to set an agreement aside.
254․At the risk of oversimplification, the Wrongs Act provides that, in the ACT, if an abuse settlement agreement is assessed as not being just and reasonable it will be set aside. The corollary is that if the agreement is assessed to be just and reasonable, then it would not be set aside.
255․In deciding whether an agreement is, in all the circumstances, not a just and reasonable agreement, any relevant matter may be taken into account: s 114K(4)(d) of the Wrongs Act.
256․In particular, the Court may take into account the amount paid to the applicant under the agreement, the bargaining position of the parties to the agreement, the conduct of a party other than the applicant, and the conduct of a legal representative of a party other than the applicant: ss 114K(4)(a)-(c) of the Wrongs Act.
257․It follows from those provisions, s 114K(5), and the fact that what is being assessed is whether an agreement is not just and reasonable, that any relevant matter touching and concerning the entry into an agreement, as well as the terms of the agreement, may be considered. This includes the manner and content of any settlement discussions, who was present at the time of the discussions, what was said, the parties’ bargaining positions, the applicant’s circumstances at the time, including the extent of his or her knowledge of their legal rights, whether they were legally represented at the time, and the consequences for each party if the Court alters the rights embodied in the agreement.
258․Matters occurring after the agreement may also be taken into account if relevant to assessing whether an agreement is not just and reasonable. In WCB (No 2) at [148], Keogh J considered that there was nothing in the text of the Victorian legislation which limited consideration of what was just and reasonable to the state of the law as it existed when the settlement was entered into. I similarly do not see anything in the text of the Wrongs Act to suggest otherwise. Indeed, I would apply what Keogh J said in WCB (No 2) at [148] to the Wrongs Act, in that if a previous settlement reflected legal barriers which have since been removed, it may be just and reasonable to set aside the settlement in order to allow the plaintiff to seek adequate compensation. That approach would achieve the “equality” between pre- and post-reform survivors which the Attorney-General emphasised was of significant importance in the Explanatory Statement to the Justice and Community Safety Legislation Amendment Bill 2022.
259․The rationales for limitation periods which are considered relevant in other areas of the law, such as extension of time applications, are not relevant to an application under
s 114K of the Wrongs Act for the reasons given in WCB (No 2), namely, that such rationales are not relevant because there is no longer any limitation period applicable to the underlying cause of action for abuse as a result of the operation of s 21C of the Limitation Act.260․In that way, for example, the death of witnesses which a defendant may have wished to call to give evidence would not ordinarily be a relevant consideration under s 114K(4)(d) of the Wrongs Act. That is because the death of such a witness would have no bearing on a post-reform survivor’s case to which s 21C of the Limitation Act applied, putting aside any potential application for a permanent stay: cf GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32; 97 ALJR 857. To achieve the equality referred to by the Attorney-General, and by the terms of s 114K(4)(d), such a circumstance would not be relevant.
261․Because the terms of the subsection focus on whether an agreement is just and reasonable, the death of a potential witness, for example, would not seem relevant to that issue. That is to be contrasted with the different legislation in other jurisdictions which examine whether it is just and reasonable in all of the circumstances to set aside an agreement.
The application of s 114K(3)(a)-(b) of the Wrongs Act to the facts of this case
Section 114K(3)(a)
262․The plaintiff entered into the Release approximately 25 years after the limitation period had expired. Thus, the limitation period which existed at that time was a legal barrier.
263․The plaintiff also submitted that he faced other legal barriers to full compensation, namely possible defences based on a denial of vicarious liability (of the defendants for the intentional torts of Father Reynolds) and the identification of a proper defendant.
264․Other than submitting that the defendant did not formally notify or rely upon any such defences, the defendant did not submit that such were potential barriers.
265․It is not in dispute that the limitation period had expired.
266․The fact that the Release was purportedly entered into by the “Catholic Archdiocese of Canberra and Goulburn”, “all current and past Clergy of the Catholic Archdiocese of Canberra and Goulburn”, and “all current and past staff, servants or agents of The Catholic Archdiocese of Canberra and Goulburn in particular [sic] of the Parish of Aranda in the Australian Capital Territory” is strongly suggestive the plaintiff faced a legal barrier of identifying a proper defendant.
267․I am satisfied that when the Release was executed there were legal barriers to the plaintiff being fully compensated through a legal cause of action, namely the expiration of the limitation period, the difficulty in identifying the proper defendant and vicarious liability for intentional torts.
Section 114K(3)(b)
268․In my opinion, the Release is, in all of the circumstances, not a just and reasonable agreement.
269․The plaintiff suffered from dyslexia and had poor reading and writing abilities. So poor were those abilities that he thought the Release was a different document entirely at the time he signed it. No one, including a lawyer, explained the contents of the Release to the plaintiff before he signed it.
270․The plaintiff was not legally represented before he signed the Release. He was not advised of rights he may have had at the time, and perhaps more importantly, he received no independent advice as to the potential quantum of his claim.
271․I do not have any direct evidence of the level of education of Bishop Power, but I infer that the Bishop was an educated man with higher than average cognitive and reasoning skills. I infer this from the fact of his position as a bishop and the lack of any evidence to the contrary.
272․Those two factors satisfy me that there was a substantial inequality of bargaining power at the time of the negotiation and signing of the Release.
273․The presence of the ‘solicitor’, on the evidence, was of no benefit to the plaintiff. No independent advice of any sort was provided, and during negotiations the ‘solicitor’ spent time alone with Bishop Power and did not disclose the contents of their private communications to the plaintiff. That indicates to me that the ‘solicitor’ had a conflict of interest that was not disclosed to the plaintiff.
274․I am not deciding quantum on this application, but it seems clear to me, on a necessarily broad and evaluative level, that the best-case quantum for the plaintiff’s damages case would be significantly greater than the Settlement Sum.
275․In all of those circumstances, the Release is not a just and reasonable agreement and should be set aside.
Costs
276․The plaintiff sought an order that the costs of the application be costs in the cause. The defendant made no submission to the contrary and did not seek an alternative order.
277․In my view, the appropriate order to make is that the costs of the application are to be the parties’ costs in the cause.
Orders
278․I make the following orders:
(1)Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), it is ordered, until further order, that the plaintiff in proceedings SC 301 of 2023 be referred to in the proceeding (including in any document to be filed with the Court, and in any affidavit or statement to be relied upon in the Court, save for the jurat of any affidavit required to be sworn) only by the pseudonym “Dominic Walsh”.
(2)Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), it is ordered, until further order, that the disclosure (by publication or otherwise) of information or particulars that might enable the person referred to in Order 1 above to be identified or that would reveal their identity, other than by use of their pseudonyms, be prohibited save for:
(a)in any subpoena for production and/or attendance or notice for non-party production, in which it is reasonably necessary to identify the person referred to in Order 1 above by their true name;
(b)in communications between the legal representative for the parties, in which it is reasonably necessary to identify the person referred to in Order 1 above by their true name;
(c)in communications necessary for the conduct of the proceedings between the legal representatives for the parties and any party, witness or other person(s), in which it is reasonably necessary to identify the person referred to in Orders 1 above by their true name, provided that:
(i) all such communications are conducted on a strictly confidential basis; and
(ii) a copy of these orders is provided to any witness or other person(s) with whom such communications are conducted.
(3)The abuse settlement agreement, being the deed of release dated 16 October 2006 signed by the plaintiff and signed by Bishop Patrick Power on behalf of the Catholic Archdiocese of Canberra and Goulburn, be set aside.
(4)The costs of the plaintiff’s application in proceedings filed 21 September 2023 are to be the parties’ costs in the cause.
| I certify that the preceding two hundred and seventy-eight [278] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin Date: |
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