Warrick (a pseudonym) v Trustees of the Christian Brothers
[2025] VSC 520
•27 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2024 02626
| ROLAND WARRICK (A PSEUDONYM) | Plaintiff |
| v | |
| TRUSTEES OF THE CHRISTIAN BROTHERS | Defendant |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 June 2025 |
DATE OF JUDGMENT: | 27 August 2025 |
CASE MAY BE CITED AS: | Warrick (a pseudonym) v Trustees of the Christian Brothers |
MEDIUM NEUTRAL CITATION: | [2025] VSC 520 |
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LIMITATION OF ACTIONS – Historical sexual abuse – Settlement agreement – Application to set aside settlement agreement under s 27QD of Limitation of Actions Act 1958 (Vic) – Whether ‘just and reasonable’ to set aside agreement – Where Ellis defence materially influenced plaintiff’s decision to enter into settlement agreement, the deed to be set aside –Limitation of Actions Act 1958 (Vic), ss 27QA(2), 27QD, 27QE –Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Tim Hammond SC | Rightside Legal |
| For the Defendant | Jeremy Ruskin KC | Colin Biggers & Paisley |
HER HONOUR:
Introduction
In 1984, whilst the plaintiff was a student at St Leo’s College in Box Hill, he was sexually abused by his English teacher, who was also a Christian Brother. The College was operated by the St Patrick’s Province of the Congregation of the Christian Brothers. In September 2015, the plaintiff accepted an offer of settlement from the defendant, the Trustees of the Christian Brothers, for the sum of $250,000 inclusive of costs (the settlement sum) and signed a settlement agreement (the deed). This deed released the defendant from any further claims by the plaintiff in respect of the abuse.[1]
[1]The release defined the respondents to the deed to also include: Brother Peter Bernard Clinch in his capacity as Provincial Leader of the Oceania Province of the Congregation of Christian Brothers; St Leo’s College; all prior principals of St Leo’s College; and the Christian Brothers.
On 27 May 2024, the plaintiff commenced proceedings in this Court, claiming damages against the defendant for the abuse. In a defence dated 9 August 2024, the defendant pleads, amongst other things, that the plaintiff’s claim is barred by virtue of the deed.[2]
[2]In the alternative, the defendant pleads that if the deed is set aside, and plaintiff establishes an entitlement to damages in this proceeding, the defendant is entitled to a set-off regarding the settlement sum.
This is an application by the plaintiff to have the deed set aside, so as to enable him to recover further compensation from the defendant.[3] The plaintiff must satisfy me that, pursuant to s 27QE of the Limitation of Actions Act1958 (Vic) (the LAA), it is just and reasonable to do so. The defendant opposes the application.
[3]By way of summons, dated 21 March 2025.
For the reasons that follow, I am satisfied the deed should be set aside.
Historical legal barriers and legislative reform
To understand the parties’ respective submissions in this application, it is helpful to outline the two critical legal barriers which historical child abuse plaintiffs commonly faced when seeking to claim compensation.
First, and relevantly at the time of the plaintiff’s abuse, under the LAA, a claim for damages by a person abused as a child, was required to be issued within six years of their 18th birthday.[4] Failure to issue within this time period would ordinarily result in a defendant pleading a limitation defence, which, absent an extension of time being granted,[5] prevented the recovery of damages.
[4] Limitation of Actions Act1958 (Vic) ss 3, 5, 23 (‘LAA’).
[5]Ibid ss 23A, 27K.
Second, there was often difficulty identifying the appropriate legal entity to sue in institutional abuse proceedings. On 24 May 2007, the New South Wales Court of Appeal delivered its judgment in Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis.[6] In that case, the plaintiff alleged that, between the ages of 13 to 18 years, he was sexually abused by an assistant priest of the Roman Catholic Church. The plaintiff sued the Archbishop of Sydney, and the Trustees of the Church. The Court held that at common law, an unincorporated association cannot sue or be sued in its own name, because, among other reasons, it does not exist as a juridical entity.[7] This gave rise to what was commonly referred to thereafter as the Ellis defence.[8]
[6](2007) 70 NSWLR 565.
[7]Ibid 576 [47].
[8]On 16 November 2007, the High Court refused special leave in Ellis.
On 1 July 2015, the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) commenced operation. Relevant to this application, it introduced ss 27O and 27P into the LAA.[9] These sections removed the limitation period for actions founded on the death or personal injury of a person who suffered sexual or physical abuse, or psychological abuse arising out of sexual or physical abuse, whilst a child, regardless of when the abuse occurred.
[9]Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) s 4.
On 1 July 2018, the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (the Legal Identity Act) commenced operation. The stated purpose of this Act was ‘to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities’.[10] The Legal Identity Act abolished the Ellis defence by closing the legal loophole which prevented child abuse plaintiffs from suing such unincorporated organisations who lacked the requisite legal identity to be sued.[11]
[10]Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) s 1.
[11]Ibid ss 7, 8.
In recognition of the potentially unfair settlement agreements reached between victims of child abuse and defendant organisations, including as a result of a limitation defence and the Ellis defence, the Victorian parliament passed legislation which gave the Court power to set aside a previous judgment or settlement if it is just and reasonable to do so. Initially this was limited to claims previously barred or settled prior to 1 July 2015;[12] however, a further amendment extended this power to claims settled prior to 1 July 2018.[13]
[12]Children Legislation Amendment Act 2019 (Vic), s 31 inserted s 27OA (Definitions for this Division) and s 32 inserted ss 27QA to 27QF into Division 5 of Part IIA of the LAA.
[13]Justice Legislation Amendment (Drug Court and Other Matters) Act 2020 (Vic), s 44 amended the definition of ‘previously settled cause of action’ under s 27OA of the LAA, by amending the reference of ‘2015’ to ‘2018’.
Legislative provisions
The sections of the LAA relevant to the plaintiff’s application are as follows:
Section 27QA
…
(2)An action may be brought on a previously settled cause of action.
…
Section 27QD
(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.
Section 27QE
(1)On an application under section 27QD or otherwise in a proceeding on an action referred to in section 27QA(2), the court, if satisfied that it is just and reasonable to do so—
(a)may make an order setting aside the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action, whether wholly or in part; and
(b)may make any other order that it considers appropriate in the circumstances.
(2)In hearing and determining any action to which this Division applies on a previously settled cause of action, the court, if satisfied that it is just and reasonable to do so—
(a)when awarding damages in relation to the action, may take into account any consideration (whether monetary or non-monetary) paid, payable or given or to be given under—
(i)a settlement agreement set aside under this section; or
(ii)any other agreement related to the settlement that has been set aside under this section; and
(b)when awarding costs in relation to the action, may take into account any amounts paid or payable as costs under—
(i)a settlement agreement set aside under this section; or
(ii)any other agreement related to the settlement that has been set aside under this section.
Principles relevant to setting aside a settlement agreement
The party seeking to set aside a settlement agreement under s 27QE bears the burden of demonstrating that it is just and reasonable to do so. Compelling reasons are not required.[14]
[14]WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639, [145] (approved by the plurality of the High Court in DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806, 810 [14](‘DZY’)).
Recently, in DZY v Trustees of the Christian Brothers,[15] the High Court dismissed an appeal pertaining to the construction of s 27QE of the LAA. The appellant, DZY, had entered into a settlement deed with the respondent in 2012. The effect of this 2012 deed was that DZY released the respondent from liability relating to claims that DZY was sexually assaulted in the 1960s, whilst attending a school operated by the Congregation of Christian Brothers. A further deed was entered into in 2015. Under both deeds, DZY agreed not to bring any further claim for damages arising from the alleged sexual assaults. Both deeds further recorded that DZY did not allege any economic loss as a result of the alleged assaults. At the time DZY entered into the 2012 deed, both legal barriers applied. At the time DZY entered into the 2015 deed, the limitation defence had been abolished by statute, but the Ellis defence was still available to the respondent.
[15]DZY (n 14).
The respondent did not oppose DZY’s application to set aside the deeds in respect of his claim for general damages, but opposed the application insofar as it would have allowed DZY to claim economic loss. At first instance, the primary judge concluded it was just and reasonable to set aside both deeds in their entirety. On appeal, the Court of Appeal considered it was just and reasonable to set aside only the general damages components of the deeds, maintaining the respondent’s protection from a further economic loss claim. The appellant appealed to the High Court.
The plurality of the Court (Gageler CJ, Gordon, Edelman and Gleeson JJ) stated that:
There is nothing in the text of s 27QE which limits the exercise of the court's power to circumstances where the claimant's decision to enter the settlement agreement had been materially impacted by either the limitation defence or the Ellis defence. The text of s 27QE simply does not prescribe the matters to which the court should have regard in determining whether to set aside a settlement agreement.
What the text of s 27QE does require, in order for the court to set aside a settlement agreement, is that the court be satisfied that it is ‘just and reasonable’ to do so. ‘[J]ust and reasonable’ are words of wide import. There is no basis in the purpose or context of s 27QE to read the words "just and reasonable" as subject to some limitation not found in the text of the provision.
A useful description of the court's task in considering whether to set aside a settlement agreement under s 27QE was provided by Fraser JA in TRG v Board of Trustees of the Brisbane Grammar School. Although that decision concerned a different provision – namely, s 48(5A) of the Limitation of Actions Act 1974 (Qld) – that provision is materially identical to s 27QE. As Fraser JA said:
[t]he use of the expression ‘just and reasonable’ to identify the only ground for such an order, the fact that the power is conferred upon courts, and the absence of any express identification of the material factors or the relative weight or significance to be attributed to any of them, compel the conclusion that the legislative purpose encompasses account being taken of the interests of both parties to the settlement in deciding whether it is just and reasonable to set aside the settlement agreement, the relative significance or weight to be given to the material factors in that exercise depending upon a judicial assessment of the particular circumstances of each case.
That construction of s 27QE is reinforced by the relevant extrinsic materials. It may be accepted that s 27QE seeks to address the existence of potentially unfair settlement agreements between victims of child abuse and defendant organisations as a result of historic, and unjust, legal barriers. However, the extrinsic materials reinforce that the breadth of the words ‘just and reasonable’, in s 27QE allow a court to set aside settlements in response to a variety of injustices. So, for example, in relation to s 27QE, the Explanatory Memorandum to the Children Legislation Amendment Bill 2019 (Vic) said:
It is in the court’s discretion to determine what is just and reasonable according to the circumstances of each case, allowing the court to apply broad principles and take account of any relevant factors. This may include, for example, the relative strengths of the parties' bargaining positions, the conduct of the parties and the amount of the settlement.
Similarly, in the Second Reading Speech, the Minister said:
In determining what is just and reasonable a court can take into account a number of considerations, informed by the Royal Commission. … Where survivors faced significant disadvantage in pursuing compensation due to legal barriers such as the statute of limitations, the Ellis defence, or the deficiency of the law regarding the duty of care of organisations, settlements entered into should be set aside in the interests of justice, to allow victims to obtain compensation which is deemed adequate by today's standards.
...
It is not necessary that the existence of the limitation period be the predominant reason as to why the agreement was entered into. There may be a number of reasons that a plaintiff entered into such an agreement, including but not limited to unequal bargaining power, barriers to identifying a proper defendant, feelings of guilt and shame compounded by the burden of giving evidence and being subject to cross‑examination, or the behaviour of the relevant institution.
Consistent with that construction of s 27QE, as Lyons JA observed, the exercise of the court's power is not fettered such that no order is to be made unless there is a finding that either the limitation defence or the Ellis defence had a “material impact” on the claimant's decision to settle their claim or was a leading factor in the decision. Given the conclusion reached by Lyons JA, and his Honour's understanding of the reasons of Beach and Macaulay JJA from which Beach and Macaulay JJA did not expressly demur, the Trustees' submission that Beach and Macaulay JJA did not treat the limitation defence or the Ellis defence as necessary prerequisites for the exercise of the power under s 27QE but, rather, that their Honours simply provided guidance as to considerations that were central, but not necessary, to the exercise of that power, should not be accepted. Beach and Macaulay JJA repeatedly made statements to the effect that: “[i]f no finding was made that either legal barrier had such an impact, it is doubtful that any cogent ground would exist to conclude it was just and reasonable to set the settlement aside”. It is apparent that their Honours incorrectly considered the legal barriers were, if not prerequisites to the exercise of the power under s 27QE, then quasi‑prerequisites, such that it is doubtful that s 27QE could apply absent either the limitation defence or the Ellis defence.
That is not to suggest that the previous legal barriers are irrelevant in determining whether it is just and reasonable to set aside a settlement agreement in whole or in part under s 27QE. One or both of the legal barriers will ordinarily play some part in determining whether it is just and reasonable to set aside a settlement agreement under s 27QE.[16]
[16]Ibid 812–3 [24]–[30] (citations omitted).
The High Court agreed with the Court of Appeal that the evidence was insufficient to allow the Court to be satisfied it was just and reasonable to set aside the deeds insofar as they released the respondent from an economic loss claim. The evidence suggested DZY abandoned his economic loss claim due to concerns about a potential liability to Centrelink, not due to the limitation defence or the Ellis defence. Also relevant to the Court’s decision was that DZY was legally represented, and was not rushed into signing either of the deeds.
Previously, in Roman Catholic Trusts Corporation for the Diocese of Sale v WCB,[17] the Court of Appeal observed the need to consider both parties’ interests in assessing whether it was just and reasonable to set aside the deed.[18]
[17](2020) 62 VR 234.
[18]Ibid 271 [124].
As part of the Court’s refusal to grant leave to appeal in WCB, it noted the appellant, the Roman Catholic Trusts Corporation, had not identified any material prejudice by reason of which it would not be just and reasonable for the Court to set aside the settlement. Specifically, it was noted that the trial judge had not erred by holding the appellant had not been relevantly prejudiced by the lapse of time or the consequential loss of evidentiary sources.[19]
[19]Ibid 279 [153].
Factual background
The following documents were tendered by the parties:
· Affidavit of the plaintiff, dated 4 April 2025;
· Affidavits of the plaintiff’s solicitor, Laird MacDonald, dated 15 April 2025 and 10 June 2025; and
· Affidavit of the defendant’s solicitor, Vanessa Kemp, dated 29 May 2025.
The plaintiff was called to give evidence, and was cross-examined.
The following is a summary of the evidence relevant to my determination of this application.
The plaintiff was born in Blackburn in 1971, and was the youngest of six children. When the plaintiff was approximately 11 years of age, his father died. The plaintiff said he was very upset by his father’s death, and that his life had been ‘turned upside’ as a result. The plaintiff also said his father’s death significantly affected his mother, which in turn impacted the plaintiff’s relationship with her.
In 1984, when the plaintiff was approximately 12 years of age, he commenced at St Leo’s. Brother Best was the plaintiff’s Year 7 English teacher. The plaintiff said on one occasion during that year, Best approached him in the school library and asked how the plaintiff was going with school. While Best was speaking to him, the plaintiff said Best ‘put his hand under my pants and touched and fondled my genitals’ and only stopped when a librarian began to approach them.
The plaintiff said on another occasion, also in 1984, he was taken by Best to Best’s private living quarters. The plaintiff said his memory of what occurred there is not complete, but he believes he was subjected to further sexual abuse by Best. The plaintiff said he had attended a doctor during that year, as he was suffering anal bleeding. These two incidents of abuse (the abuse) are the subject of the plaintiff’s damages claim against the defendant in this proceeding.
In July 2008, the plaintiff made a report to the police in respect of the abuse, and Best was later charged. The plaintiff gave evidence at a committal hearing on 24 February 2009. Best subsequently pleaded guilty to multiple charges, including one count of indecent assault against the plaintiff. In July 2011, the plaintiff provided a victim impact statement at the sentencing hearing, and Best was sentenced in August 2011.[20]
[20]R v Best (County Court of Victoria, Punshon J, 8 August 2011).
The plaintiff said that as a result of the abuse: his ‘education was derailed’; he was ‘never able to build a career’ for himself; and he suffered ‘poor mental health’. The tendered material indicated the plaintiff took nine years to complete a bachelor of arts, and that he commenced a PhD, but later withdrew from it. At the time of the victim impact statement, the plaintiff stated he had been unemployed for the previous six years.
For the last 20 years, the plaintiff has been a ‘blogger’, who publishes online commentary on politics, with a particular interest in right wing political activities. The plaintiff is not paid for writing his blog, although he had been contracted by a publisher to co-author a book on the history of the ‘Australian far right’. The plaintiff said he never commenced writing the book.
On approximately 9 August 2011, the plaintiff spoke via telephone to Dr Vivian Waller from solicitors Waller Legal and sought advice as to his options for pursuing compensation against Best and/or the Christian Brothers. On 28 October 2011, the plaintiff signed a cost agreement with Waller Legal.
Over the period Waller Legal acted for the plaintiff, he was provided with numerous letters of advice. Relevant to this application were the following letters:
(a) In a letter dated 10 January 2011,[21] the plaintiff was advised of the compensation options available to him, being: a Supreme Court common law case; a Sentencing Act application;[22] and ‘alternative dispute resolution’. The plaintiff was advised there were ‘various difficulties’ associated with the proposed Supreme Court common law claim. These were identified as ‘the expiration of the limitation of actions period and difficulties encountered in identifying the correct Catholic entity to sue’.
(b) In a letter dated 2 May 2012, the plaintiff was advised Waller Legal had lodged a Sentencing Act application against Best in the County Court of Victoria.
(c) In a letter dated 9 February 2013, Waller Legal repeated its advice to the plaintiff that there were ‘various difficulties’ associated with the proposed Supreme Court common law claim. Furthermore, Waller Legal identified the same two legal barriers as it had in its previous letter dated 10 January 2011.
[21]The parties agreed this was a typographical error, and that the letter was written in January 2012.
[22]Pursuant to s 85B of the Sentencing Act 1991 (Vic).
On 23 July 2014, someone from the office of Waller Legal spoke to the plaintiff about issuing proceedings. The attendance note referred to a discussion about the risk of an adverse costs order and the technical weaknesses in his case. The note also referred to ‘limitations issues, Ellis defence’. It was noted the plaintiff instructed Waller Legal to issue proceedings, and that Waller Legal would write to the Christian Brothers ‘to clarify who should be named as a defendant’.
On 9 September 2014, someone from the office of Waller Legal spoke to the plaintiff. The attendance note recorded the plaintiff was ‘happy for his claim to take as long as it takes to reach the right result’.
In addition to the letters of advice and telephone attendances referred to above, other extracts from the plaintiff’s file from Waller Legal were tendered. Of relevance to this application, I note the following:
(a) On 23 February 2012, solicitors Monahan + Rowell, who were then acting for the defendant, wrote to Waller Legal in relation to the ‘proposed dispute resolution process’ involving Christian Brothers matters, and stated this need not be limited to claims involving Best. In this letter, Monahan + Rowell also stated (amongst other things) that:
We agree, and further restate the point that any and all relevant defences in relation to liability for the claim, damages and generally can and will be raised in such settlement discussions.
(b) On 12 August 2014, a meeting was held between Waller Legal and legal representatives of parts of the Catholic Church, including the Christian Brothers. Waller Legal’s typed note of this meeting (a copy of which was placed on the plaintiff’s file) recorded it was to be private and confidential. It was noted that Dr Waller sought ‘something in writing about the Ellis defence’. The note then recorded that Patrick Monahan, from Monahan + Rowell, ‘admitted that they are having difficulties confirming instructions in relation to “Ellis”’.
(c) On 8 September 2014, a legal representative from Waller Legal had a telephone discussion with legal representatives of the defendant. Waller Legal’s handwritten note of this conversation noted the legal representatives of the defendant would be ‘happy’ to provide details of the ‘correct entity’.
Prior to the informal settlement conference held between Waller Legal and the defendant’s legal representatives, Waller Legal provided the defendant with the following medical material:
(a) Treatment notes from the plaintiff’s general practitioner, Dr Paul Pellegrini.
(b) A report from psychiatrist, Dr Sandra Hacker, dated 5 May 2014. Dr Hacker outlined her opinion in relation to the plaintiff, following her weekly treatment of him since March 2013. Dr Hacker opined the abuse had a profound impact on the plaintiff and she diagnosed him as suffering from ‘a chronic dysthymic disorder with intermittent episodes of decompensation into a major depressive disorder’. Regarding this diagnosis, Dr Hacker stated that:
This is currently manifest by sleep and appetite disturbance with weight loss, severe problems with concentration and motivation, mood disturbance with nihilistic preoccupation and ongoing suicidal ideation, and major disruption to interpersonal relationships.
Dr Hacker considered the plaintiff’s prognosis was guarded. She stated the plaintiff’s depression was ‘quite disabling’, and as a consequence he had been unable to consistently attend lectures in a course he had enrolled in at RMIT. Dr Hacker concluded her report by stating the abuse had ‘an extraordinary effect’ on the plaintiff’s educational achievements, such that his career prospects and potential earnings had been seriously impacted.
(c) A report from medico-legal psychiatrist, Professor Lorraine Dennerstein, dated 29 February 2012. Professor Dennerstein detailed the history she obtained from the plaintiff, including details of the abuse, the plaintiff’s current social functioning and his mental state. She opined the plaintiff had developed dysthymia, with symptoms of persistently lowered mood, low self-esteem and avoidance of going to sleep. Professor Dennerstein noted the plaintiff had been suicidal at times and believed he exhibited some symptoms of post-traumatic stress disorder. Moreover, these symptoms were said to be chronic, caused the plaintiff significant distress, and impaired his social, educational and occupational functioning. Professor Dennerstein noted the plaintiff had attended a psychologist and psychiatrist for a prolonged period of time and had also taken antidepressant medication. Professor Dennerstein considered the plaintiff’s symptoms were likely to continue. It was her opinion that the plaintiff’s education had suffered as a consequence of his distrust towards teachers and his school. Professor Dennerstein also opined the plaintiff’s long-standing fear and suspicion of institutions and authority, and his low self-esteem, contributed to his lack of educational attainment and difficulty with employment.
The defendant’s solicitors arranged for the plaintiff to be examined by medico-legal psychiatrist, Dr Timothy Entwisle in September 2014. In a report dated 26 September 2014, Dr Entwisle detailed the plaintiff’s personal background, interests, activities, and past medical and psychiatric history. Dr Entwisle also noted the history of the death of the plaintiff’s father and the impact which it had upon the plaintiff and his mother. Dr Entwisle outlined the plaintiff’s education and employment history. Dr Entwisle diagnosed the plaintiff as suffering recurrent major depressive illness and adjustment disorder with anxious mood. Dr Entwisle opined the plaintiff’s life was significantly impacted by his father’s death and his vulnerability was thereafter aggravated by his experience of abuse. Dr Entwisle considered the plaintiff’s prognosis was guarded. Dr Entwisle opined the abuse had impacted the plaintiff’s academic progress and caused ongoing difficulties with maintaining intimate relationships.
On 17 September 2014, Waller Legal provided the defendant’s solicitors with details as to the plaintiff’s claim for loss of earnings, based upon his intentions of pursuing an academic career as a lecturer, but for his psychological injuries arising from the abuse. The letter detailed the difficulties which the plaintiff had experienced whilst undertaking his undergraduate degree, and how he later abandoned his PhD. It was stated the plaintiff had never earned enough money to lodge a tax return and accordingly there were no taxation records in existence.
On 10 March 2015, Waller Legal provided the defendant’s solicitors with additional particulars and documentation in relation to the plaintiff’s claim for loss of earnings. Such correspondence included documents pertaining to the earnings of an associate professor at Monash University, who at the time was remunerated $136,432 gross per annum. The plaintiff claimed that, if not for the abuse, he would have pursued a similar career path.
On 11 August 2015, an informal settlement conference was held between the defendant’s solicitors and Waller Legal, with Mr John Noonan QC (as he then was) acting as mediator. At this settlement conference, Mr Tim Seccull of counsel appeared on behalf of the plaintiff, assisted by Ms Elisa Zelez, a solicitor from Waller Legal.
At the settlement conference, Mr Seccull was in possession of a copy of the Christian Brothers’ Guiding Principles for responding to civil claims involving allegations of child sexual abuse (dated 2 April 2015). Additionally, Mr Seccull’s brief to appear contained details of the identity of the Provincial of the Christian Brothers at the time of the abuse, being Brother Frank Chapel, who was noted to still be alive at the time.
Ms Zelez’s handwritten notes of the settlement conference were tendered. The notes of the open session recorded that Mr Seccull assessed the plaintiff’s claim as being ‘in excess of $2 million’. The notes further recorded: the defendant would not make an admission of liability; the plaintiff would ‘need to show vicarious liability of the Brothers’; and that Waller Legal would be given ‘an entity to sue’.
The plaintiff said he did not sit in on the open session. The plaintiff could not recall being told what Ms Zelez noted had been said between the parties’ legal representatives in that session.
The parties proceeded to negotiate a possible settlement of the plaintiff’s claim, with the defendant’s first offer being for the sum of $150,000 inclusive of costs. After further negotiations between the parties, the defendant stated its final offer was a sum of $250,000 inclusive of costs (the offer of settlement). The plaintiff was advised he could either accept this offer of settlement, or re-put his previous counter offer of $900,000 plus costs. The defendant agreed the offer of settlement would remain open for a period of 28 days, to enable the plaintiff time to consider it.
Ms Zelez’s handwritten notes record that after the settlement conference, she discussed the final offer with Mr Seccull, who considered it was ‘an appropriate outcome’ and that it was ‘probably advisable’ for the plaintiff to take it. It was noted the loss of earning claim would ‘most likely fail’ and if the plaintiff was to get $150,000 for pain and suffering ‘that would be pretty good’. Ms Zelez also wrote: ‘we’re always looking for the test case but this isn’t it’. Finally, the note recorded there was a concern a jury ‘probably wouldn’t be that sympathetic with [the plaintiff]’. The plaintiff could not recall being told of the matters referred to in Ms Zelez’s notes.
On 20 August 2015, the plaintiff had a telephone conversation with Ms Zelez. The handwritten notes of that discussion do not detail any substantive advice being given to the plaintiff, save for a reference to there being no guarantee in relation to Centrelink, and that there was an expected repayment to Medicare. The notes also detailed the process, if the plaintiff accepted the offer of settlement.
On 26 August 2015, Waller Legal sent a letter to the plaintiff, in which it confirmed the offer of settlement was open until 8 September 2015. The letter advised the plaintiff as to what was to be reimbursed to Medicare and that there was to be no repayment to Centrelink. After the payment of legal costs, the plaintiff was advised if he accepted the offer, he was expected to receive no less than $195,178.85. In addition, the letter outlined developments in the law relevant to the plaintiff’s claim. This included the amendment to the LAA, which removed the limitation period for child abuse plaintiffs such as himself.
On 2 September 2015, the plaintiff signed a document entitled ‘Instructions to Settle Claim’ and provided it to Waller Legal on 3 September 2015. In this document, the plaintiff instructed Waller Legal to accept the offer of settlement, and agreed to the following:
Waller Legal have provided me with legal advice based on the current state of the law and the defences currently raised by the Defendants. Waller Legal cannot provide legal advice based of possible changes to the law in the future…
I wish to resolve my claim now. I believe that resolution of my claim now is best for me personally, emotionally and legally.
On 7 September 2015, Waller Legal informed the defendant’s solicitors of the plaintiff’s acceptance of the offer of settlement.
On 8 September 2015, the plaintiff signed the deed.
Under the deed, the plaintiff agreed that in exchange for the settlement sum, he would give up his legal rights against the defendant, and would discontinue his Sentencing Act application against Best. The deed also contained a term which stated the defendant did not admit it was liable for the claim.
Attached to the deed was a solicitor’s certificate, signed by Dr Waller and dated 22 September 2015. In this certificate, Dr Waller stated:
I have explained the purport and effect of the annexed document to the [plaintiff] who appeared to me to understand the purport and effect of this document.
The plaintiff said from the time he first consulted Waller Legal he was aware of the two legal barriers to his claim — a limitation defence and the Ellis defence. The plaintiff said he understood the ‘Ellis defence meant that there was difficulty finding an entity to sue’. The plaintiff also said he ‘did some reading and came to understand … the structure of religious organisations and that impacting on the ability to sue them’.
The plaintiff said prior to resolving his claim, he had been advised that through legislative amendment, the limitation defence had been removed as a barrier to his claim. However, the plaintiff consistently maintained that at the time he accepted the offer of settlement, he believed the Ellis defence remained a barrier in his ability to sue the Christian Brothers. The plaintiff denied he was told otherwise by either Waller Legal or Mr Seccull. The plaintiff said the Ellis defence was part of his reasoning for settling his claim at that time.
In cross-examination, it was put to the plaintiff his reason for accepting the offer of settlement was because he had been advised his loss of earnings claim was likely to fail. The plaintiff said he could not recall that happening, but accepted he might have been told this. The plaintiff said he could not recall such advice being determinative in his decision to accept the offer. The plaintiff said there were other factors which contributed to his decision to settle, including the Ellis defence.
The clinical records of Dr Hacker, pertaining to her treatment of the plaintiff from 22 April 2013 up until 5 October 2015, were tendered. The plaintiff was cross-examined on some of the entries contained in those notes. For the most part, the plaintiff said he could not recall any of the specific attendances upon Dr Hacker, but he did not quarrel with the substance of Dr Hacker’s records from such attendances. The clinical records noted the impact which the abuse had upon the plaintiff, together with stress and anxiety associated with his legal claim. The records also indicated there were a multitude of stressors in the plaintiff’s life. These included difficulties in relationships, especially with his mother and an intimate partner who lived interstate. Additional stressors included: worries associated with ‘his work’; writing; difficulties in obtaining a disability pension; and the risk of retribution if he was to become a public figure from his writing.
The plaintiff said in the lead up to the settlement conference, his mental health was poor, and he was suffering anxiety, depression and had suicidal ideations. After the settlement conference, the plaintiff attended upon Dr Hacker, who made the following note on 17 August 2015:
Not bad. Got his settlement reasonably comfortable about this. Issues about whether it will really make an enormous difference to him or whether it will feel like it is someone else to whom it is making a difference. Thinking about the possibility of buying a car and having a holiday. Hopes to get an apology from the church which he thinks will benefit his mother.
The plaintiff could not recall reporting the above to Dr Hacker, but accepted the contents of this entry. The plaintiff said he was ‘not necessarily happy’ with the settlement, but was ‘reasonably comfortable’ with it. In re-examination, the plaintiff explained he was comfortable, as ‘it was better to get something than nothing’. The plaintiff said at the time of settlement he believed he was operating under ‘considerable legal restraints’, which included the Ellis defence.
In opposition to the application, the defendant sought to rely upon three internal documents which it said supported its claim that the Ellis defence was no longer a barrier at the time the plaintiff signed the deed. These were as follows:
(a) A media release from the Christian Brothers Oceania Province dated 2 April 2015, in which it announced the release of its Guiding Principles.
(b) A media release from the Truth, Justice and Healing Council[23] dated 22 May 2015, which stated senior Catholic Church leaders, including the Christian Brothers, were no longer using the Ellis defence as a legal tactic in responding to claims of child abuse.
Ms Kemp deposed to a copy of this media release being contained on the Waller Legal file pertaining to the plaintiff.
(c) A media release from the Christian Brothers Oceania Province dated 30 March 2016, which stated the Christian Brothers ‘have and will continue to nominate a proper legal entity, backed by assets, to enable victims to commence civil proceedings, if that is the course victims and their lawyers are seeking’. The statement also noted that in respect of claims pertaining to Best, the Christian Brothers had worked ‘collaboratively’ with Dr Waller, and ‘advised her in writing that the Christian Brothers were prepared to provide an entity with assets for litigation purposes …’.
[23]The joint body established by the Australian Catholic Bishops Conference and Catholic Religious Australia. The Truth, Justice and Healing Council was created in response to the establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse, and served to represent the Church in a coordinated manner before the Commission.
Parties’ submissions
The plaintiff submitted the Court should be satisfied it is just and reasonable to set aside the deed. The plaintiff had been advised on several occasions of two legal barriers which would prevent him from proceeding with a claim — a limitation defence and the Ellis defence. At the time the plaintiff accepted the offer of settlement, he had been advised that legislation had removed any limitation defence, but he believed the Ellis defence remained an obstacle to his claim for damages.
The plaintiff contended the Christian Brothers failed to indicate it would not rely on the Ellis defence at any point leading up to, and including at, the settlement conference. Further, it was submitted it was not sufficient to assume the Christian Brothers would not rely upon the Ellis defence, merely because they had identified the Provincial as an individual who may be sued.
In addition, the plaintiff submitted he had a strong claim which had resolved at an undervalue.
The defendant urged me to refuse to set aside the deed, on the basis it was not just and reasonable to do so. The defendant submitted at no point prior to the plaintiff accepting the offer of settlement, had it indicated it would raise or rely on the Ellis defence. To the contrary, it was put that Waller Legal was aware the defendant was co-operating with plaintiffs, including the plaintiff in this proceeding, in the identification of an entity to sue. The defendant submitted the failure of the plaintiff’s legal team to adequately advise the plaintiff on this, should not result in it losing the protection of the releases contained in the deed.
The defendant submitted there was no evidence the plaintiff was under undue pressure at the time he accepted the offer of settlement. It emphasised that it had: offered to fund counselling for the plaintiff; allowed him to bring a support person to the settlement conference; offered him an apology or an opportunity to attend a pastoral meeting; and permitted the plaintiff to have up to 28 days to consider the offer of settlement.
In addition, the defendant submitted the compromise in the plaintiff’s damages claim was due to a number of risk factors, unrelated to the Ellis defence. Relying on the reports of independent medico-legal experts, Professor Dennerstein and Dr Entwisle, the defendant submitted several other factors adversely impacted the plaintiff’s capacity for work and his psychiatric condition. These included: the death of his father; his mother’s response to this death; and the plaintiff’s experience of bullying at school. The defendant also relied upon entries from the clinical records of Dr Hacker, which it submitted demonstrated the multitude of unrelated stressors in his life, and that the plaintiff had an unfulfilled work capacity.
The defendant submitted that given those risk factors, the settlement sum should not be considered unreasonably low. The defendant referred to the following prior damages awards to further support its submission in this regard:
(a) SB v New South Wales,[24] where the plaintiff was awarded general damages of $195,000, together with $26,461 for past loss of earnings and $60,000 for future economic loss.
(b) GGG v YYY,[25] where the plaintiff was awarded general damages of $200,000, together with $20,000 for aggravated damages, $30,000 for exemplary damages, and $17,000 for medical and like expenses.
(c) Erlich v Leifer,[26] where the plaintiff was awarded general damages of $300,000, together with $501,422 for future economic loss, $50,358 for past economic loss, and $172,648 for past and future medical and like expenses. In addition, the Court awarded a sum of $100,000 exemplary damages against the school where Ms Erlich had attended (and Ms Leifer was the former headmistress), and $150,000 exemplary damages against Ms Leifer.
[24](2004) 13 VR 527.
[25][2011] VSC 429.
[26][2015] VSC 499.
Finally, the defendant referred me to recent judgments of this Court involving applications to set aside previous settlements. It was submitted parallels can be drawn between the present case and O’Connor v Trustees of the Christian Brothers,[27] where the Court refused to set aside a previous settlement. The defendant also submitted the plaintiff’s application should be distinguished from WCB, Jensv The Society of Jesus in Australia,[28] and Williams v State of Victoria.[29] In these cases, the Court was satisfied that either one or both of the legal hurdles had at least in part influenced a previous settlement.
[27][2025] VSC 65, note that this decision is currently subject to an appeal.
[28][2024] VSC 329.
[29][2022] VSC 456.
Analysis
Having regard to the whole of the evidence, the parties’ submissions, and applying the principles outlined above, I have concluded the deed should be set aside.
In so deciding, I have considered the following factors which tend against the granting of such relief:
(a) the plaintiff was represented by legal practitioners (including counsel) experienced in institutional abuse claims;
(b) Waller Legal’s contemporaneous notes record the identification of some risks for the plaintiff as to the quantum of the damages he would recover, which were unrelated to any barrier created by a possible Ellis defence. I consider it probable the plaintiff’s legal advisors informed the plaintiff of at least some of these risks on the day of the settlement conference. I consider it further probable such advice as to risks on quantum would have, in part, informed and influenced the plaintiff’s decision to accept the offer of settlement;
(c) during the open session at the settlement conference (at which the plaintiff was not present) the defendant did not raise the Ellis defence, and instead indicated it would identify an entity for the plaintiff to sue; and
(d) the defendant made allowances to ensure the plaintiff was not under any undue influence at the time he entered into the deed.
However, against those matters, I have considered the following factors which positively support a determination that it is just and reasonable to set aside the deed.
Some of the tendered records demonstrated Waller Legal was aware of the defendant’s intention to cooperate with plaintiffs in the identification of an entity to sue and not to rely upon the Ellis defence. However, there was nothing in writing to Waller Legal advising there was an entity, which would be indemnified, in respect of the plaintiff’s potential common law claim. Thus I do not accept the defendant’s submission there was a failure by the plaintiff’s legal team to adequately advise the plaintiff in respect of this.
The plaintiff was advised in writing on two occasions of the legal barriers to his damages claim,[30] that being a limitation defence and the Ellis defence. The plaintiff was also advised by telephone, on at least one occasion,[31] of the ongoing existence of these legal barriers. In Waller Legal’s letter dated 26 August 2015, sent to the plaintiff whilst he was considering the offer of settlement, he was advised about the statutory abolition of the limitation defence. This letter was silent in respect of the Ellis defence.
[30]See paragraph [29] above.
[31]See paragraph [30] above.
The plaintiff gave consistent and credible evidence in respect of the Ellis defence. The plaintiff said prior to settlement he was never informed the Ellis defence was no longer a legal barrier to his claim. There is nothing in the contemporaneous records to demonstrate otherwise. In particular, there is no evidence the plaintiff was advised by his legal representatives the defendant would not rely upon the Ellis defence and that he should have no regard to this possible defence when considering the offer of settlement. Further, the plaintiff was not asked if he had seen, or was made aware of, the Christian Brothers’ press release of May 2015, or its Guiding Principles.
The plaintiff said he had researched the Ellis defence and understood how the structure of religious organisations impacted an individual’s ability to sue them. The plaintiff said the Ellis defence was part of his reasoning for accepting the offer of settlement, and signing the deed. I accept the plaintiff’s evidence in respect of the Ellis defence. I am satisfied the Ellis defence was a material factor which influenced the plaintiff’s decision to accept the offer of settlement.
The defendant did not contend that it would suffer any specific prejudice if the deed was set aside. Save for the loss of the release from exposure to a further claim by the plaintiff, there was no claim of prejudice suffered from the loss of any evidentiary sources since the deed was executed.
For those reasons, I am satisfied it is just and reasonable to set aside the deed.
Given the conclusion detailed above, it is not necessary for me to further evaluate the parties’ respective submissions on the possible quantum of the claim, and whether it was undervalued in comparison to other damages awards. It is simply fair to observe that prior to the settlement conference, Waller Legal had served a relatively detailed claim in respect of the plaintiff’s economic loss. This claim included wage details of a comparable employee,[32] which, if accepted, could result in a significant economic loss award to the plaintiff. I accept there were numerous matters to cross-examine the plaintiff on in relation to his earning capacity (as occurred before me in cross-examination), the existence of other stressors in his life, and the differing opinions as to his psychiatric diagnosis. However, such risks to the plaintiff’s claim, are insufficient to dissuade me from my conclusion that the plaintiff’s decision to compromise his damages claim was materially influenced by the Ellis defence.
[32] See paragraph [36].
As was confirmed in DZY, the fact that the previous legal barriers are not prerequisites to the exercise of the power under s 27QE does not mean they are not relevant. In this case, the impact of the Ellis defence on the plaintiff’s decision to compromise his claim is sufficient to convince me that it is just and reasonable to set aside the deed.
I was not assisted by a comparison between the plaintiff’s application and the circumstances of other cases involving applications under s 27QE. To state the obvious, each case must turn on its own facts, as found by the Court.
Conclusion
On the evidence before me, and for the reasons given, I am satisfied that, pursuant to s 27QE of the LAA, it is just and reasonable to set aside the deed.
I will hear from the parties on the form of orders.
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