Williams v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2021 00075

BETWEEN:

SHIRLEE WILLIAMS	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022
DATE OF RULING:	11 August 2022
CASE MAY BE CITED AS:	Williams v State of Victoria
MEDIUM NEUTRAL CITATION:	[2022] VSC 456

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CONTRACT – Settlement agreement – Application to set aside settlement agreement – Whether just and reasonable to set aside settlement agreement – Historical sex abuse – Settlement of statute barred proceeding – Retrospective removal of barriers to actions for damages for personal injury resulting from child abuse – Abolition of limitation period for actions for personal injury resulting from child abuse – Limitation of Actions Act 1958 (Vic), ss 27QA, 27QD and 27QE.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	C W R Harrison QC with M T Schulze of counsel	Judy Courtin Legal
For the Defendant	M Britbart QC with M Pekevska of counsel	Victorian Government Solicitor

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 1

Material relied upon by the parties................................................................................................ 2

The plaintiff’s affidavit evidence................................................................................................. 14

The plaintiff’s medical evidence................................................................................................... 15

The plaintiff’s 2014 claim and her current claim....................................................................... 17

Statutory provisions and legal principles................................................................................... 17

The application to set aside the deed........................................................................................... 26

Prejudice to the defendant......................................................................................................... 26
Adequacy of the settlement sum.............................................................................................. 26
The plaintiff was vulnerable and felt pressured when she settled her previous claim.... 29
The plaintiff’s claim was statute barred................................................................................... 30
The strength of the plaintiff’s case............................................................................................ 32
The plaintiff did not understand the legislative reforms on foot during 2015 due to her emotional dysregulation and alcohol use......................................................................................... 33
Unequal bargaining power between the plaintiff and the defendant................................. 33
Evolving community expectations and medical opinion about the lifelong impact of abuse 34

Consideration.................................................................................................................................... 35

The defendant’s application to vacate the trial date.............................................................. 42

HIS HONOUR:

Introduction

On 16 March 2015, Shirlee Williams (plaintiff) signed a deed of settlement (deed) with the State of Victoria (defendant) over a claim for general damages in relation to alleged childhood sexual abuse suffered when the plaintiff was a State ward. By that deed, the plaintiff released the defendant from any further claims in relation to the alleged abuse.

The plaintiff has now commenced this proceeding in relation to the alleged abuse. The defendant has filed a defence in which it pleads the terms of the deed as a bar to the proceeding. The plaintiff has filed a summons seeking that the deed executed by the parties on 1 April 2015[1] be set aside pursuant to ss 27QD and 27QE of the Limitation of Actions Act 1958 (Vic) (Limitation of Actions Act). The defendant opposes the plaintiff’s summons. There is no dispute about the effect of the terms of the deed. It is common ground between the parties that if the deed is not set aside, the plaintiff’s proceeding will effectively end. This ruling relates to the plaintiff’s application.
[1]1 April 2015 is the date the deed was signed by the defendant.

The trial of the plaintiff’s proceeding is due to commence on 30 August 2022 and estimated to take eight days. The defendant has applied to vacate the current trial date on the basis that the proceeding is not ready for hearing. The plaintiff opposes the defendant’s application to delay the trial. This ruling also relates to the defendant’s application to delay the trial.

For the reasons below, I have decided that it is just and reasonable that the deed be set aside. I have also decided that the trial date of 30 August 2022 should be vacated.

Background

The plaintiff was a State ward between February 1978 to March 1986. During this time, she lived at a children’s home but was released from the home for some weekends and holiday periods into the care of Kevin Sanders and his wife, Patricia Sanders. The plaintiff alleges she was sexually abused by Mr Sanders on numerous occasions while on home release. She has brought this proceeding against the defendant for negligence and breach of statutory duty and claims damages for psychiatric injury and economic loss suffered as a result of the abuse. The plaintiff also claims the abuse constituted batteries at common law.

The defendant admits that the plaintiff was under the guardianship of the Director-General of Social Welfare or the Director-General of Community Welfare Services at the relevant time. It admits that from time to time the plaintiff was released into the care of Mr and Mrs Sanders. It does not admit the abuse and denies liability. Further, the defendant pleads as an absolute bar to the plaintiff’s proceeding that in 2015 it settled a claim made by the plaintiff in relation to the abuse and that, by the terms of the deed signed by the parties, the plaintiff comprehensively released the defendant from any further claims in relation to the abuse.

Material relied upon by the parties

The plaintiff relies on the following material in support of her application to set aside the settlement agreement:

(a) the affidavit of Shirlee Williams sworn 17 December 2021;

(b) the affidavit of Susie Hodgman affirmed 17 December 2021; and

(c) written submissions dated 11 March 2022.

The defendant relies on the following in opposition to the plaintiff’s application:

(a) the affidavit of Kate Wright affirmed 11 February 2022;

(b) the second affidavit of Kate Wright affirmed 8 April 2022; and

(c) written submissions dated 11 April 2022.

The affidavit material filed by the parties relates to communications between:

(a) the plaintiff and Ryan Carlisle Thomas (RCT), the plaintiff’s legal representatives in the 2014-2015 settlement negotiations;

(b) RCT and the Victorian Government Solicitor’s Office (VGSO), the defendant’s legal representatives in the 2014-2015 settlement negotiations; and

(c) the VGSO and the Department of Human Services (Department), the relevant part of the defendant which was responsible for providing the VGSO with instructions.

That material discloses the following.

The plaintiff was born on 16 November 1975 and was a ward of the State of Victoria between 1978 and 1986. While a ward, the plaintiff was placed in a residential home called The Gables Children’s Home (The Gables) but released on some weekends and holiday periods to ‘Holiday Hosts’, Kevin and Patricia Sanders.

The plaintiff first contacted RCT on 8 November 2012 seeking a solicitor to ‘find out what can be done in regards [sic] to my abuse’. On 22 November 2012, the plaintiff sent a follow-up letter to Angela Sdrinis of RCT, asking for advice about legal action against the defendant ‘for putting me in care of Foster parents that sexually and mentally abused me at a young age, I was 4 until the age of 10 I believe and there has been not much I have been able to do’. The plaintiff told Ms Sdrinis that she would like to sue the defendant and to find out what happened to her foster parents.

On 11 December 2012, the plaintiff wrote to Ms Sdrinis describing the circumstances in which she and her brother were put under the care of the Sanders every second weekend from the age of four years and Kevin Sanders’ abuse of her from the age of about five years until about the age of nine years. The plaintiff writes that when she was about eight years old she told her brother ‘Uncle Kevin is doing things to me’. The plaintiff also recounts going to the office of The Gables’ superintendent, Ms McAulay, to report the abuse but being told by Ms McAulay to go away as she was busy.

On 11 December 2012, the plaintiff further wrote to Ms Sdrinis detailing the impact of the abuse, including anger management problems, suicidal thoughts and self-harm, major depression and abuse of drugs and alcohol. The plaintiff told Ms Sdrinis that she had seen many counsellors, psychologists and a psychiatrist. The plaintiff also told Ms Sdrinis that she had undertaken drug and alcohol counselling.

On 28 February 2013, Ms Sdrinis wrote to the plaintiff providing information about the Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Organisations (Victorian Parliamentary Inquiry) and the Federal Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). The information provided by Ms Sdrinis was of a general nature, including the terms of reference. Ms Sdrinis’ letter notes:

If your matter is currently proceeding to Court or by way of out of court negotiations/settlement conference, it may be an option for you to defer settlement or resolution of your claim pending the outcome of the Royal Commission and/or the Victorian Inquiry. We will give you further advice about the settlement of your claim at the appropriate time but at this stage we are continuing investigate [sic] claims and to process viable claims under current arrangements. You should note however that if your claim is deferred or delayed, this may prejudice your future entitlements should you subsequently wish to proceed with your legal claim.

On 30 April 2013, the plaintiff wrote to Ms Sdrinis. The plaintiff notes that her wardship file states that by the time she was seven years old it was decided that the plaintiff’s wardship would not require supervision by an allocated worker and that instead the plaintiff’s wardship would be reviewed annually. The plaintiff asks Ms Sdrinis about the progress of her claim and whether there is anything else she can do. The plaintiff also updates Ms Sdrinis about her psychotherapy treatment costs.

On 21 June 2013, Ms Sdrinis wrote to the plaintiff advising that, ‘notwithstanding the significant abuse that you suffered whilst a Ward of the State, we believe it will be difficult to establish a legal claim on your behalf’. This assessment appears to be based on Ms Sdrinis’ belief that in the absence of evidence of complaints by the plaintiff about the abuse, it would be difficult to establish negligence. Ms Sdrinis also says:

Further, you face the statute of limitations which is a law which says your claim is out of time and even if it was possible to establish legal liability in your claim, an application for an extension of time would have to be made and there is no guarantee that an extension would be granted. Accordingly, there is real risk in your claim.

Ms Sdrinis then confirms the plaintiff’s instructions that at the age of about 19 years the plaintiff contacted the Department to report the abuse and was told there was nothing that could be done. Ms Sdrinis asks the plaintiff about any evidence from others that might corroborate the plaintiff’s contact with the Department.

On 12 August 2013, on the advice of Ms Sdrinis, the plaintiff made a statement to police about the abuse.

On 20 September 2013, Ms Sdrinis sent an email to the plaintiff informing her that Ms Sdrinis had been informed by the police that Kevin and Patricia Sanders had died within five months of each other in 1994. Ms Sdrinis also informs the plaintiff that the fact the plaintiff had contacted the Department before her 37th birthday and the fact the Sanders were dead would not assist the plaintiff in an application for an extension of time to commence a civil proceeding against the defendant. Ms Sdrinis tells the plaintiff that notwithstanding this, ‘the [S]tate is still prepared to make offers in claims like yours and we will finalise our investigations and give you some advice’.

On 17 December 2013, Ms Sdrinis wrote to the plaintiff informing her that the Victorian Parliamentary Inquiry Report had been tabled and included a recommendation that the statute of limitations applying to historical sex abuse cases be abolished. Ms Sdrinis cautioned that while the government had indicated it would consider the report’s recommendations:

there is no confirmation that all of these recommendations will be adopted, and it may be some time before we are in a position to advise how these changes might affect your situation.
…
Further, for claimants who have not yet settled their cases, there may be an argument to await the possible legislative changes recommended by the Parliamentary Committee. However, whether or not it is preferrable to defer settlement of cases pending the possibility of legislative change or whether it is appropriate for a matter to proceed under current laws will be a matter for discussion in each individual case.

The plaintiff wrote to Ms Sdrinis on 27 January 2014 explaining the ongoing impact the sexual abuse continued to have on her life. The plaintiff described wanting to find employment but not being able to because of her ongoing psychological symptoms. The plaintiff states that as Kevin and Patricia Sanders are both dead, they will not face criminal charges for the abuse.

On 6 March 2014, the plaintiff sent an email to Ms Sdrinis in which she says that after a lot of thought the plaintiff has decided that she should tell Ms Sdrinis the amount of money she sought from the defendant in respect of ‘basic damages claim, loss of earnings’. The plaintiff says she wants $50,000 as ‘this will restore my life with a roof over my head, new training and a car’.

On 8 April 2014, Ms Sdrinis wrote a file note of a conversation she had with the plaintiff. In this file note, Ms Sdrinis records that she advised the plaintiff that her claim was not strong because it would be difficult to show that defendant knew or ought to have known that the plaintiff was at risk. Ms Sdrinis notes that, against this, the available evidence shows that there was very little supervision of the plaintiff given the amount of time she was spending at the Sanders’ home. Ms Sdrinis says that she advised the plaintiff that it may be difficult to argue that The Gables should have known from the plaintiff’s behavioural problems that something was wrong because the plaintiff had been involved in a car accident in which she sustained head injuries ‘and this seemed to be the explanation for the behavioural problems’. Ms Sdrinis told the plaintiff she could expect a settlement of between $35,000 to $55,000, less legal costs. Ms Sdrinis records that the plaintiff was not happy with this range.

Relevantly, Ms Sdrinis notes her advice that the plaintiff could ‘await the outcome of the Royal Commission to see if that assisted particularly in terms of the limitation period.’ Ms Sdrinis continues that, ‘[h]owever, I didn’t think the limitation problem was [the plaintiff’s] biggest issue. …[The plaintiff’s] biggest problem is showing that the State knew or should have known that she was at risk’. Ms Sdrinis records that she advised the plaintiff that she might do better if a redress scheme or reparations tribunal were established as a result of the Royal Commission. However, further delay would prejudice the plaintiff’s claim.

On 8 April 2014, the plaintiff emailed Ms Sdrinis stating:

I’ve put my heart and soul into assisting you (RTC) with my claim and I knew I had asked for assistance when I was 37. I am emotionally, mentally exhausted from these years iv [sic] carried this with me (sexual abuse of [sic] my foster parent). So I’m saying I deserve more than $35,000, when you take out your fee’s [sic] I’m left with nothing, that’s not even half a year’s wakes [sic] in which I have lost through the stress and depression of not working whilst going through this.
…
I’m actually angry and offended at the low offer.
However I think if your fee’s [sic] where [sic] paid and I still received $50,000 I would be happy and I could say all this hard work has paid off…

The plaintiff wrote a further email to Ms Sdrinis on 8 April 2014, in which she states that she might accept an offer which would leave her with $42,500 after legal fees.

On 9 April 2014, Ms Sdrinis replied to the plaintiff’s emails stating that she would do her best for the plaintiff and that if she was unable to obtain the figure the plaintiff sought, ‘there will be no pressure from me to settle. You will be free to get a second opinion at that point or to wait for the [R]oyal [C]ommission to issue its recommendations’. Ms Sdrinis sent the plaintiff a follow-up email on the same day advising the plaintiff that the figure she sought was not unreasonable ‘however there is no guarantee that this will be achieved given my advice to you about the legal risks in your case’ and that ‘yours is not a case that I would be prepared to take to court so you would appreciate that this makes bargaining for the figure you want somewhat difficult if the threat to go to court is a hollow one’. Ms Sdrinis concludes by saying that if the plaintiff signs and returns the terms of engagement letter, Ms Sdrinis will assume the plaintiff wishes to proceed with Ms Sdrinis, who promises to do the best she can for the plaintiff.

On 11 April 2014, RCT wrote to the plaintiff confirming the plaintiff’s instructions to pursue a compensation claim against the defendant with the aim of reaching a settlement at an informal settlement conference. RCT advised the plaintiff against commencing formal proceedings at that time.

On 17 April 2014, the plaintiff wrote to Ms Sdrinis attaching her acknowledgement of RCT’s fee arrangements. In this letter, the plaintiff states:

I only ask that my first request be $50,000 after your payment of $12,500, please do that for myself. It is a fair request = $62,500.
…
At first in one of my emails I did write $80,000, however I’m thinking it might be too high.

In a further letter to Ms Sdrinis dated 17 April 2014, the plaintiff told Ms Sdrinis about an email the plaintiff received from her tutor in 2011 praising her for pursuing her abusers. At that time, the plaintiff had been studying for a Diploma in Community Services (Case Management).

On 19 May 2014, Ms Sdrinis sent an email to the plaintiff informing her that RCT had prepared her statement of claim and that, after providing the statement of claim to the defendant, RCT would commence preparing the corroborative material. Ms Sdrinis informs the plaintiff that once the corroborative material is served on the defendant, they would have 12 weeks to consider the material and decide whether to make an offer of settlement. Ms Sdrinis tells the plaintiff that she anticipates the defendant will make an offer, which will lead to negotiations. The process would finish, advised Ms Sdrinis, within the next six to 12 months.

On 23 May 2014, Ms Sdrinis wrote to the VGSO enclosing an unfiled draft statement of claim in anticipated litigation between the plaintiff and the defendant relating to the plaintiff’s wardship. Ms Sdrinis advised the VGSO that she was preparing corroborative material which she would provide in the near future and that she would not issue proceedings at this stage on the basis that the parties agreed to hold an informal settlement conference after the corroborative material had been provided.

On 29 June 2014, the plaintiff sent an email to Ms Sdrinis informing Ms Sdrinis that she was on the verge of being homeless and that she was on a priority waiting list for public housing but had been advised it could still be years before she was offered housing. In the email, the plaintiff sought advice from Ms Sdrinis about whether, as a former ward of the State, she should contact the Minister for Community Services about her housing issues. On 2 July 2014, Ms Sdrinis responded, advising the plaintiff to contact the Minister for Community Services, although she was not sure it would help.

On 16 July 2014, Ms Sdrinis prepared a memorandum to her colleague, Ron[2]. Ms Sdrinis informs Ron that the plaintiff’s claim is modest, that the plaintiff is ‘quite damaged and struggles to understand why her claim is not a strong one given the extent of her abuse’. Ms Sdrinis says she has explained to the plaintiff the problem of showing that the defendant knew or should have known the plaintiff was at risk. Ms Sdrinis notes the plaintiff’s distress is ‘compounded by the fact she is at risk of homelessness and generally struggling to cope’.
[2]Although unidentified, Ron appears likely to be Ms Sdrinis’ colleague, Ron Pearce.

Ms Sdrinis wrote a further memorandum to Ron on 23 July 2014, in which she sets out the advice she gave the plaintiff about a settlement range of between $35,000 and $50,000, less fees. Again, Ms Sdrinis refers to the plaintiff’s housing issues noting ‘she is now homeless’.

On 5 September 2014, Ms Savidis of RCT wrote to the VGSO. In that letter, Ms Savidis puts the plaintiff’s claim as follows:

We submit that your client breached its duty to our client by allowing our client to be subjected to physical, sexual and emotional abuse. We say that your client had a duty to supervise and inspect the facilities in which our client was placed and that any proper supervision or inspection would have revealed that our client and other children were being subjected to systemic abuse.

Ms Savidis’ letter says that the plaintiff’s brother states that he saw Kevin Sanders leave the plaintiff’s bedroom and that the plaintiff was crying and that she told him that Kevin Sanders was touching her genitals. The plaintiff’s brother also said that he witnessed Kevin Sanders touching the plaintiff in his presence on occasions and that he saw Kevin Sanders and the plaintiff lying in bed together at times. Ms Savidis also says that the plaintiff complained to the Superintendent at The Gables, Ms McAuley, about the abuse and that Ms McAuley failed to take action. Further, Ms Savidis says that the plaintiff complained to ‘a DHS worker’ about the abuse when she was about 19 years of age and was told that it was too late for the Department to do anything. Ms Savidis refers to other evidence corroborating the plaintiff’s claim. Finally, Ms Savidis states the plaintiff has suffered depression, anxiety disorder and adjustment disorder as a result of the abuse and will require psychological treatment, possibly up to 50 sessions over five years.

On 5 September 2014, Ms Savidis wrote to the plaintiff informing her that RCT had now served material corroborating the plaintiff’s claim on the defendant, including the plaintiff’s statutory declaration, institutional records, psychological report and statutory declarations and corroborative statements by other people in support of the claim.

On 10 October 2014, the plaintiff wrote to Ms Savidis of RCT. In this letter, she tells Ms Savidis that she has to move accommodation and is struggling to find a place. The plaintiff says she hopes her claim is finalised by January 2015 as that will assist her in finding a place to live. At the bottom of this letter, the plaintiff includes a new address, which suggests that her immediate housing problems had been addressed by the time the plaintiff sent the letter.

On 28 October 2014, Ms Savidis wrote to the plaintiff confirming receipt of the plaintiff’s new address details and informing the plaintiff that RCT could not guarantee that the plaintiff’s claim would be finalised by January 2015.

On 9 December 2014, the VGSO wrote to the Legal Services Branch of the Department seeking instructions to participate in a settlement conference with the plaintiff and to negotiate a settlement of the matter ‘on the best possible terms up to $130,000 inclusive of costs’. While most of the content of this letter has been redacted, the letter notes that ‘the abuse is serious, involving actual and attempted sexual penetration … over an extended period (over approximately six to seven years)’. The letter continues by outlining the claim and corroborative material that the plaintiff has provided. The VGSO notes that it does not provide any advice to the Department on the Limitation of Actions Act because ‘effective from April 2014, the State is not to rely, formally or informally, upon Limitation of Actions Act defences in sexual abuse claims’, and that in assessing quantum it has taken into account the Common Guiding Principles relating to the non-reliance on limitation defences.

In relation to the quantum of the settlement sum recommended, the VGSO notes the State’s obligations as a model litigant and that ‘it is imperative that the State acts consistently in the handling of claims and litigation.’ The VGSO sets out its research into verdicts and settlements ‘in other cases involving similar harm’. The VGSO notes that in the cases it has identified as similar from an Australia-wide review, the upper and lower awards of general damages vary considerably but that the average general damages awarded by the courts is between $145,000 - $150,000. The VGSO identifies a recent settlement for a claim ‘broadly similar to this claim’ for $130,000 in which the alleged sexual abuse occurred ‘during periods between 1982 and 1985 … during home release and post-wardship, and included masturbation and attempted and actual sexual penetration. … Some physical and emotional abuse post-wardship was also alleged. There was minimal evidence in this case of supervision by the State.’ The VGSO concludes that on the information available the plaintiff’s claim is likely to be worth in the range of $110,000 - $130,000 because the nature of the abuse is serious, involved actual and attempted sexual penetration in addition to fondling and masturbation, was frequent and occurred over an extended period of approximately six to seven years. The VGSO also states that it considers it ‘unlikely that any other factors will be found to be a major contributing cause of the [p]laintiff’s injuries.’

The VGSO letter annexes a table setting out the cases it considered comparable for the purpose of recommending a settlement figure. The table includes 13 cases.

On 9 January 2015, the VGSO wrote to Ms Savidis. In this letter, the VGSO says that after considering the plaintiff’s material, its client believes the plaintiff will have difficulty in proving her case against the defendant. The VGSO raises, in particular, the lack of direct corroborative evidence of the plaintiff’s allegations and the difficulties the plaintiff would face proving to the Court that her current psychological state is solely attributable to her time in the defendant’s care, noting her previous serious head injury and history of drug and alcohol abuse. The VGSO proceeded to make an offer of settlement of $90,000, inclusive of costs, to minimise the cost and stress to the plaintiff and to facilitate a timely and sensible resolution of the claim.

On 13 January 2015, Ms Savidis prepared a file note of a telephone conversation she had with the plaintiff. Ms Savidis says that she advised the plaintiff of the defendant’s offer of $90,000 and gave her an estimate of the current outstanding legal fees. Ms Savidis notes the plaintiff ‘was very pleased with the offer’ and, as it was an opening and not final offer, the plaintiff gave Ms Savidis instructions to put a counteroffer of $140,000 and a letter of apology.

On 14 January 2015, Ms Savidis responded to the VGSO rejecting the defendant’s offer and putting a counteroffer of $140,000 and a letter of apology. Ms Savidis refutes the VGSO’s assertion of a lack of corroborative evidence in the circumstances of alleged sexual abuse that often occurred in private. In relation to the VGSO’s reference to other possible causes of the plaintiff’s current psychological condition, Ms Savidis notes that the plaintiff’s wardship file states that the plaintiff ‘did not recall the impact’ of the accident involving the head injury and that the plaintiff’s instructions are that she turned to drugs and alcohol in her teenage years to help deal with the effects of the alleged abuse. Further, Ms Savidis states that where an issue arises regarding the effect on damages of multiple causes, the plaintiff need only establish that the tortious act was a cause and not the sole cause of the alleged loss.

On 28 January 2015, the VGSO wrote to Ms Savidis rejecting the plaintiff’s counteroffer and putting a further offer of settlement of $100,000 and a letter of apology. Ms Savidis informed the plaintiff of the offer, recording this advice in a file note made the same day.

On 28 January 2015, Ms Savidis wrote to the VGSO rejecting the defendant’s offer of the same day and counteroffering $130,000 and the letter of apology.

On 4 March 2015, the VGSO rejected the plaintiff’s counteroffer and put a final offer of $120,000 and the letter of apology. Ms Savidis informed the VGSO by email the same day that the plaintiff accepted the offer.

Ms Savidis made a file note on 4 March 2015 of her telephone conversation with the plaintiff. Ms Savidis records that she told the plaintiff the terms of the defendant’s final offer and the amount of legal costs that would be deducted from that amount if the plaintiff accepted the defendant’s offer. Ms Savidis records that the plaintiff, ‘was very happy with the offer and instructed me to accept it. She stated that she was very grateful for what we had done and it had taken a huge burden off her shoulders’. Ms Savidis records that she gave the plaintiff detailed advice about the terms of the deed of release, including that any future rights to access any redress scheme that might be established were likely to be limited or lost.

On 4 March 2015, Ms Savidis emailed her colleague, Ron Pearce, informing him that the plaintiff’s claim had settled for $120,000 and that, ‘we had quoted the client a settlement range of $35-55k so she was very pleased’.

On 11 March 2015, Ms Savidis wrote to the plaintiff enclosing the RCT settlement authority (authority), deed of release and direct deposit authority. Ms Savidis requested that the plaintiff sign and return the documents as soon as possible. The authority records the settlement figure, the legal costs and disbursements to be deducted from the settlement figure, that the offer is in respect of non-pecuniary loss and that the settlement is a compromise of the plaintiff’s claim, taking into account the legal risks ‘which have been explained fully to me’. The authority also states that, ‘[b]ecause this settlement does not include any component for loss of income, it should not affect any Centrelink benefits that [the plaintiff receives] and … are likely to be tax free.’ The authority also states that ‘[t]he payment of this lump sum is in full and final settlement of my claims against the State of Victoria. Further, I understand that, should I pursue a claim against another party in the future in respect of the abuse and/or neglect I suffered as a Ward of the State, I have agreed to indemnify the State of Victoria against any amounts a court may order them to contribute to any award of compensation that may be made to me’. Finally, the authority states:

I am aware that:
(a)The Commonwealth Government has established a Royal Commission into Institutional Responses to Child Sexual Abuse.
(b)The Commission may ultimately make recommendations regarding the establishment of a National “redress fund”.
(c)Recommendations have been made to the Victorian Parliament regarding legislative amendment and the establishment of an alternative Justice Model which may mean that in the future claim such as mine have greater prospects of success.
(d)By settling my claim against the State of Victoria any rights I may have to participate in or claim from any redress fund are likely to be limited or perhaps even lost. I understand that it is not yet clear whether the Royal Commission will recommend the establishment of such a redress fund, nor whether the Government of the day will choose to establish such a redress fund even if it is so recommended. Nevertheless, I confirm that I wish to settle my claim.

The plaintiff signed the deed of release on 16 March 2015. The defendant signed the deed on 1 April 2015.

On 8 May 2015, Ms Savidis wrote to the plaintiff confirming that her claim against the defendant had settled.

On 28 August 2018, the plaintiff wrote an email to a lawyer at RCT. In that email, the plaintiff says that she has just been granted a disability support pension due to her Post Traumatic Stress Disorder (PTSD) and anxiety. The plaintiff says she wants to make sure ‘I have been given the same fair justice for the child sexual abuse as victim’s [sic] get today with the massive changes.’

The plaintiff’s affidavit evidence

In her affidavit, the plaintiff says that when she was as young as four years old, she was raped and sexually assaulted by Kevin Sanders on multiple occasions from about 5 March 1979 to March 1986. In describing the impact of the abuse, the plaintiff says that she has been drinking alcohol from the age of 15 years and started taking illicit drugs ‘at a young age until the age of 30 to block out what Kevin Sanders did to [her] when [she] was a little girl.’ The plaintiff says she has been diagnosed with PTSD and medicated for depression. She has self-harmed.

The plaintiff describes her life in 2014 as follows:

A lot of the time I was drunk and intoxicated. If I got hungover the next day, I would stay in bed and sleep and recover, then I would do it again the next day.
In October 2014 my ex-partner kicked me out because of my drinking.
In October 2014 I moved to a share-house at … Kelmscott, Western Australia and lived with [four other people].
In 2015, I attempted self-harm and broke my wrist. I went to Armadale Hospital for treatment.
Every now and then I took painkillers while drinking to help forget about my abuse.
In 2015 I was drinking approximately 20 standard drinks every day.
I stayed in a share house 24/7 and didn’t go out, except to take my dog out or sign for anything that my lawyers sent, then went back to my room to drink.

In relation to the settlement of her previous claim, the plaintiff deposes that she received the deed of release from RCT on 11 March 2015. The plaintiff recalls speaking with her solicitor, Ms Savidis about the deed and being told ‘what to do, where to sign it, [and] possible top-up with money.’ The plaintiff says she was told that ‘anything I can get will take another 3 or more years.’ The plaintiff says she recalls being told by her lawyer that ‘there’s not much else that can be done, so either sign or wait 3 years for the Redress Scheme.’ The plaintiff says she felt pressured by her lawyer to sign it because ‘there was no other way’. The plaintiff says that the day she signed the deed she was, because of her addiction to alcohol and pain-killer medication, sick.

The plaintiff deposes that she cannot recall being advised about the legislative changes to remove the limitation period in cases of child sexual abuse. She says she did not understand what she was told because ‘my head wasn’t in the right space. I thought I had a claim that no legs [sic]’.

The plaintiff’s medical evidence

The plaintiff’s medical evidence reveals the following:

(a) on 4 July 2009, the plaintiff was admitted to hospital after being involved in a motor vehicle collision with a pole. The plaintiff told hospital staff she had been drinking a large amount of wine at her mother’s house prior to the accident. The plaintiff told hospital staff that she had no recollection of the accident;

(b) on 28 October 2009, the Traffic Accident Commission (TAC) informed the plaintiff it was unable to pay the plaintiff’s claim for loss of earnings because her blood alcohol reading at the time of the accident was at or above 0.24 milligrams per 100 millilitres of blood. The TAC file records that the plaintiff has pre-existing alcohol and drug dependency and includes a copy of a letter from the plaintiff to the TAC in which she states she takes Temazepam 10 mg to help her sleep as she suffers from flashbacks;

(c) on 20 December 2012, the plaintiff was referred to Dr Valerie van Loggerenberg, psychologist, by Warrina Medical Centre. The letter of referral notes the plaintiff has a history of childhood trauma and molestation as a ward of the State and has a past history of depression and anxiety for which she is medicated;

(d) Dr van Loggerenberg prepared a psychological report dated 14 February 2014 for the plaintiff’s legal representative, Ms Sdrinis. Dr van Loggerenberg prefaced her report by saying that she has not conducted a full clinical assessment of the plaintiff or conducted any psychological tests. Dr van Loggerenberg’s opinion was that the plaintiff was having difficulty with cognitive processing and emotional regulation due to childhood abuse for which she used drugs and alcohol to cope. Dr van Loggerenberg stated the plaintiff would require further psychological treatment and assistance to overcome drug and alcohol dependency; and

(e) the plaintiff was psychiatrically assessed by Dr Erin Redmond, who prepared a report dated 1 April 2021. Dr Redmond diagnosed the plaintiff with PTSD, alcohol abuse (in remission) and polysubstance abuse (in remission). Dr Redmond’s opinion is that the plaintiff is unlikely to make a full psychological recovery but may improve. She recommends the plaintiff undergo at least another one to two years of counselling with a psychologist. Dr Redmond states that she has no doubt that the sexual abuse is a significant contributor to the plaintiff’s PTSD. Dr Redmond thinks it highly unlikely that the plaintiff will have any capacity for full-time employment in the future although at some stage the plaintiff may be able to do some limited work.

The plaintiff’s 2014 claim and her current claim

The defendant’s written submissions conveniently summarised the content and differences between the plaintiff’s 2014 claim and her statement of claim in the current proceeding. The plaintiff agreed with that summary, which is as follows:

[T]he allegations pleaded in the first [statement of claim] are broadly identical to the allegations in the Statement of Claim filed by the Plaintiff in the current proceedings.
The only differences to the Plaintiff’s current claim than that of [her] first [statement of claim are]… that:
(a)the Plaintiff has expanded her claimed psychological injuries alleged to be suffered by the abuse;
(b)the Plaintiff has expanded on the relief and special damages she seeks now seeking medical and like expenses, an indemnity to repay any amount owed to the Health Insurance Commission, loss of earnings and loss of earnings capacity and exemplary damages. The Plaintiff only sought damages for pain and suffering in her 2014-2015 claim and the unfiled Statement of Claim… provided to the State in 2014 specifically states that ‘the Plaintiff makes no claim for economic loss’; and

(c)the Plaintiff has sought to plead a secondary cause of action in battery against her alleged abuser Mr Sanders (for which she claims vicarious liability against the State).

Statutory provisions and legal principles

Section 27QA(2) of the Limitation of Actions Act provides that an action may be brought on a previously settled cause of action. An action is defined in s 3 to include any proceeding in a court of law.

A previously settled cause of action is defined in s 27OA of the Limitation of Actions Act to mean a cause of action to which Division 5 of Part IIA of the Limitation of Actions Act applies that was settled and given effect by a settlement agreement before 1 July 2015. A settlement agreement is defined in the same section to mean an agreement giving effect to the settlement of a cause of action to which Division 5 applies.

Part IIA of the Limitation of Actions Act applies to a cause of action for damages that relate to the death of or personal injury to a person regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise. The part extends to an action that arises under Part III of the Wrongs Act 1958 (Vic). However, a number of other statutory causes of action are excluded from the application of Part IIA.

Division 5 of Part IIA relates to actions for personal injury resulting from child abuse. Section 27O(1) provides that:

(1)This Division applies to an action if the action –
(a)is in respect of a cause of action to which this Part applies or extends; and
(b)is founded on the death or personal injury of a person resulting from –
(i)an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse; and
(ii)psychological abuse (if any) that arises out of that act or omission.

Sections 27QD and 27QE of the Limitation of Actions Act govern applications to set aside a settlement agreement and provide as follows:

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.
27QE Court’s powers – previously settled causes of action
(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.

In WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2)[3], Keogh J considered the construction of ss 27OA - 27QF of the Limitation of Actions Act. In summary, Keogh J said:
[3][2020] VSC 639, [136]-[161].

(a) the discretion of the Court in s 27QE to set aside a previous judgment or settlement, if it is just and reasonable to do so, is not expressly confined and the matters to which the Court must or may have regard are not set out;

(b) principles of statutory interpretation emphasise the primacy of the statutory text. The statutory text must be considered in its context including legislative history and extraneous materials. Legislative history and extraneous materials cannot displace the meaning of the statutory text and their examination is not an end in itself;

(c) statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’ and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’;

(d) wherever the legislature has given the Court a discretion without defining the grounds on which the discretion is to be exercised, one must look at the scope and purpose of the provision and at what is its real object;

(e) the subject matter of the s 27QE discretion is an action founded on the death or personal injury of a person resulting from child abuse brought on a previously settled cause of action;

(f) the subject matter of the discretion is not the previous settlement but the action which may be brought on a previously settled cause of action;

(g) to focus on the settlement agreement, the circumstances in which it was made and the inter partes rights embodied in it is to confine the discretion in a manner inconsistent with the text and purpose of the provision;

(h) the circumstances in which the settlement agreement was created and the consequences for each party of alteration of inter partes legal rights embodied in the agreement will often, perhaps always, be relevant. There is nothing in the text of s 27QE which makes those factors, insofar as they are relevant to the exercise of the discretion, the Court’s primary concern or more significant or controlling than other factors;

(i) things that have occurred before the settlement or matters which have arisen since the settlement may have particular relevance to the exercise of the discretion;

(j) there is nothing in the text of s 27QE, or elsewhere in Division 5, which limits consideration of what is just and reasonable in respect of an action on a cause of action for child abuse to the state of the law as it existed when the settlement was entered into. If the previous settlement of the cause of action reflected the 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;

(k) the applicant in an application for relief under s 27QE bears a positive burden of demonstrating that it is just and reasonable that the discretion be exercised in their favour. Compelling reasons are not required and nor are there preconditions or requirements which an applicant for relief under s 27QE must establish to enliven the discretion, other than that the application is being made in respect of an action to which the section applies;

(l) the general purpose of Division 5 is to take a fundamentally different approach to delay, prejudice and time limits to that which applies under Divisions 2 and 3 to all other actions for damages that relate to death or personal injury;

(m) the legislative purpose for limitation periods, described by McHugh J in Brisbane South Regional Health Authority v Taylor,[4] is evident in s 27D of the Limitation of Actions Act, which imposes limitation periods for personal injury actions and in the provisions which empower the Court to extend time on consideration of matters directed principally to the length of, reasons for and consequences of delay. The legislative purpose of Division 5 of Part IIA is not driven by the same rationales. There is no limitation period for actions to which the division applies. The subject matter of the division is the right to bring an action, rather than limiting the period in which that can be done, or the consequences of delay;

(n) considerations relevant to the exercise of the Court’s inherent power to grant a permanent stay are separate from considerations which are relevant to the discretion under s 27QE;

(o) while the Limitation of Actions Act is not remedial legislation, the provisions in Division 5 of Part IIA of the Act, which includes ss 27QD and 27QE, are. These provisions are intended to benefit that class of persons who have suffered personal injury from child abuse by enabling them to bring an action for that injury. That purpose is achieved by removing the limitation period, which would otherwise apply, and by giving the right to seek to set aside a previous judgment for settlement which occurred in the context of legal barriers that have since been removed. The remedial character of the legislation supports an interpretation which confines the discretion in s 27QE to not include considerations such as lapse of time and prejudice which are relevant to a barrier to the action which was intended to be removed.

[4](1996) 186 CLR 541, 553-4.

Keogh J’s decision in WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2)[5] was appealed in Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (WCB)[6]. The Court of Appeal had the following to say about the construction of ss 27QD and 27QE:

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.[7]

[5][2020] VSC 639.

[6](2020) 62 VR 234, per Beach, Kaye and Osborn JJA.

[7]Ibid [104].

In oral argument on the plaintiff’s application in this case, two issues arose as to the correct principles to be applied in determining the plaintiff’s application to set aside the deed. The first was whether consideration of delay and prejudice to the defendant were relevant to the exercise of the discretion under s 27QE. The plaintiff submitted that these factors were not relevant. The defendant submitted that the Court should consider delay and prejudice to the defendant in the exercise of the discretion.

The second issue, raised by the defendant, concerned the correct method the Court should employ in the exercise of its discretion, including the extent to which the historical context and purpose of the statutory provisions limits the matters the Court may consider in the exercise of its discretion under s 27QE. The defendant submitted that the Court of Appeal’s WCB decision places limitations on factors the Court should consider relevant to the exercise of the discretion.

The starting point in an application to set aside a deed is that there is a valid agreement in place that prevents the plaintiff from recovering in the current proceeding. From that starting point, it is for the plaintiff to satisfy the Court that, pursuant to s 27QE of the Act, it is just and reasonable that the agreement be set aside.

The defendant submitted that the broad ambit of the discretion must be interpreted in the context in which the provision was introduced into the legislation, which was to remove the two barriers that Parliament has said operated unfairly for victims of historical child sexual abuse: the limitation period and the inability to identify a proper defendant in cases involving unincorporated associations. According to the defendant, the Court of Appeal’s decision in WCB should be understood as placing restrictions on what is relevant for the Court to consider in exercising its discretion.

The defendant put this argument most directly in its oral submissions. Counsel for the defendant submitted during oral submissions that:

[W]e say the limitation is this, that the only factors which [the Court] should take into account in determining what's just and reasonable are those factors which create an unfairness in the specific circumstances that victims of childhood sex abuse face. That is, not factors that may be common potentially to all litigants, not factors which could be operative in the case of any plaintiff who suffers from a psychological injury, but things that create a specific unfairness for victims of childhood sexual abuse.[8]

[8]Transcript of Proceedings, Williams v State of Victoria (Supreme Court of Victoria, S ECI 2021 00075, Irving AsJ, 10 May 2022) 28 (M Britbart QC).

In relation to both of these issues, the decision of the Court of Appeal is instructive. The Court of Appeal, like Keogh J, identified the historical context as including the legislative removal of unjust and unfair barriers that stood in the path of plaintiffs who sought damages for historical sex abuse that had been perpetrated on them in their childhood. Those were the removal of the limitation period in child abuse cases and provision for the nomination by an unincorporated association of an entity capable of acting as the proper defendant in proceedings.

Pertinently, the Court of Appeal then proceeded to consider the relevance of considerations of delay and prejudice to the defendant in concluding whether it was just and reasonable to set aside the settlement agreement. The Court of Appeal said:

As we have discussed, the single question, which a court must address under ss 27QD and 27QE, is whether the Court is satisfied that it is just and reasonable to make an order setting aside the terms of settlement.[9]
…
[I]t is clear that the factors, which a court should take into account in determining an application under ss 27QD and 27QE, may not be the same as those which are required to be taken into account in an application to extend the period within which the proceeding may be brought. In such an application, s 23A(3) requires the Court to take into account and balance the length of the delay on the part of the plaintiff, the reasons for that delay, the extent to which there might be prejudice occasioned to the defendant as a result of the delay, and like considerations. Those factors are necessarily relevant to determining whether it is just and reasonable to extend the limitation period in a particular case, taking into account the rationales for the prescription of limitation periods identified by McHugh J in Brisbane South. By contrast, the focus, in ss 27QD and 27QE, is not on the lapse of time since the accrual of the plaintiff’s cause of action, but, rather, on whether it is just and reasonable to set aside a settlement agreement that has previously been concluded between the parties. While some of the factors, applicable to an application for an extension of time, might be relevant to the determination whether it is just and reasonable to set aside the settlement agreement, nevertheless the focus, in a case such as this, is necessarily different.[10]
…
[W]e consider that, in an appropriate case involving an application under ss 27QD and 27QE, the prejudice, due to the elapse of time, which might ensue to the defendant, may be relevant. The question, which the court must address under s 27QE, is whether it would be just and reasonable to both sides for the settlement agreement to be set aside. The purpose of setting aside the settlement agreement is to enable the plaintiff to be able to institute proceedings that were the subject of the release under the terms of settlement. In determining whether it would be just and reasonable to set aside the terms of settlement, consideration must therefore be given to whether it would be just and reasonable for the defendant to lose the protection of the terms of settlement and not be exposed to a further claim on it by the plaintiff. The resolution of that issue would involve a consideration whether there would be unfair prejudice to the defendant in the conduct by it of its defence from such proceedings.
While the judge expressed the view — with which we disagree — that such prejudice was not a relevant consideration in determining an application under ss 27QD and 27QE, nevertheless his Honour considered that question, and concluded the effects of delay and the loss of evidence were not such as to make it likely that the trial of the proceeding would be unfair to the defendant.11
[citation omitted]

[9]WCB, [121].

[10]Ibid [122].

Based on the wording of the Court of Appeal’s decision, it is clear that consideration of delay and prejudice to the defendant may be relevant to the exercise of the discretion under s 27QE.

In my view, it is equally clear that the broad text of the discretion encapsulated in s 27QE must be interpreted in light of its legislative purpose and context. The defendant’s submissions seek to impose further limits on the factors the Court can consider in the exercise of the discretion to those directly relevant to the plaintiff’s identity as a victim of childhood sexual abuse and not including factors that may be relevant to that identity that are also relevant to other litigants who are not victims of childhood sexual abuse. In my view, such a gloss seeks to impermissibly and unworkably restrict the exercise of the discretion. In exercising the discretion, the Court must determine whether, in all of the circumstances of the case before it, it is just and reasonable to set aside the deed. In undertaking that exercise, the Court must interpret ‘just and reasonable’ in light of its legislative purpose and context which the Court of Appeal has clearly stated involved the removal of the two barriers – the limitation period and the absence of a legal defendant. It is unnecessary and unhelpful to seek to further limit the unambiguous words of the legislative text in the way the defendant’s submissions seek to do.

The application to set aside the deed

The plaintiff put its application on the following bases.

Prejudice to the defendant

The plaintiff submitted that the defendant will not suffer substantial prejudice if the settlement agreement is set aside and the proceeding continues, and that there has not been an effluxion of time so burdensome that a fair trial would not be possible. The plaintiff submitted that delay in reporting abuse is a frequent feature of child abuse cases. The plaintiff contended that in this case the Sanders had died before the 2014-15 settlement negotiations and the defendant did not make detailed investigations at the time the deed was being negotiated and has not contended that delay has caused a substantial deficiency in the documentary record.

In response, the defendant argued that it may suffer substantial prejudice. First, the defendant said the death in 2016 of the plaintiff’s brother, the only witness to the alleged abuse, has deprived it of the ability of cross-examining a key witness about his statement and his recollections and beliefs. Second, the defendant said it is ‘likely to suffer prejudice’ in being able to locate and identify Departmental witnesses that were involved in the supervision of the plaintiff when she was a ward. The defendant said that it presently did not know if such witnesses are deceased, infirm or, because of the passage of time, no longer recollect the plaintiff’s wardship. Third, in respect of the death of Kevin and Patricia Sanders, who were deceased at the time the settlement was reached, the defendant contended that it was not the case that it would suffer no prejudice but rather that it would suffer no additional prejudice.

Adequacy of the settlement sum

The plaintiff submitted that in settling her claim in 2015 for $120,000 inclusive of costs, she did so at a heavy discount because of the barriers and uncertainties her claim faced. In this regard, the plaintiff pointed to Ms Sdrinis’ advice to the plaintiff on 13 June 2013 that, in addition to issues establishing liability, the plaintiff was out of time to bring her claim and that there was no guarantee that the Court would grant an extension of time to bring the claim. The plaintiff also pointed to Ms Sdrinis’ advice to the plaintiff on 17 December 2013 that while the report of the Victorian Parliamentary Inquiry recommended the abolition of the limitation period, there was, at that time, no indication that the government would accept that recommendation.

The defendant contended that there is nothing to suggest that the settlement reached with the plaintiff in 2015 was anything but fair when assessing her legal risks and comparative awards and settlements at that time. The defendant relied on the following evidence of RCT’s advice to the plaintiff in support of this contention:

(a) the unfiled statement of claim provided by RCT to the VGSO in 2014 made no claim for economic loss;

(b) the settlement range was between $32,500 and $55,000;

(c) the plaintiff’s case was not strong on liability because it would be difficult to show that the defendant knew or should have known that the plaintiff was at risk, there was very little evidence of abuse and causation was complicated by the head injuries sustained by the plaintiff in a motor vehicle accident which may have explained the plaintiff’s behavioural difficulties;

(d) RCT was not prepared to litigate the plaintiff’s claim because of the liability issues;

(e) the plaintiff was invited repeatedly to seek a second opinion or await the outcome of the Royal Commission;

(f) the plaintiff indicated she wanted at least $42,000, $50,000 or $80,000 by way of settlement and received well above this amount;

(g) the plaintiff was ‘very pleased’ with the defendant’s opening offer of $90,000 and ‘very happy’ with the defendant’s final offer of $120,000 when she instructed RCT to accept the offer;

(h) RCT’s first counteroffer of $140,000 was proximate to where the matter finally settled; and

(i) in signing the authority, the plaintiff acknowledged that the settlement amount was ‘a compromise of [her] claim taking into account the risks of litigation which [had] been fully explained to [her]’ and that the ‘offer [did not] necessarily represent the most [she] could receive if [she] proceeded with [her] action to a final judgment by the court but [represented] a fair and reasonable resolution of [her] claim taking into account the risks of litigation’.

Additionally, the defendant said the fact that it did not rely on the limitation defence in assessing or settling the plaintiff’s 2014 claim indicates that there was no ‘discount’ applied. Rather, the defendant argued, as a model litigant it conducted a review of Australian cases and the VGSO’s own holdings where general damages had been awarded for pain and suffering in sexual abuse claims to locate an appropriate range for the plaintiff’s damages. This research disclosed an average damages range of between $140,000 and $150,000 and a settlement of ‘a similar matter’ in November 2014 for $130,000.

The defendant said that the plaintiff’s uncertainty as to why her original claim was limited to general damages only is not consistent with the terms of the authority she signed. The defendant argued that the terms of the authority suggest the plaintiff’s claim was limited to general damages based on a concern that any settlement for economic loss would negatively impact on the plaintiff’s Centrelink payments and the likelihood that any compensation for economic loss would be subject to a taxation liability. The defendant put these submissions as high as ‘[i]n other words, the [authority] signed by the [p]laintiff, indicates that the [p]laintiff did not seek economic loss in 2014 so she would not face any detriment in respect of any reduction in her Centrelink benefits or a tax liability’.

The defendant further contended that the fact that since 2015 plaintiffs have sought and been awarded economic loss claims is not sufficient of itself to indicate that there was any unfairness to the plaintiff in accepting her settlement in 2015. According to the defendant, it would be an unfair situation that the plaintiff sought the benefit in 2015 of not negatively impacting her Centrelink benefits or taxation liability but now seeks special damages in the form of economic loss because other plaintiffs have been awarded such loss.

The plaintiff was vulnerable and felt pressured when she settled her previous claim

The plaintiff submitted that she was particularly vulnerable at the time her claim was settled. The plaintiff had written to her solicitors about her impending homelessness and her affidavit details the extent of her alcoholism in 2014. Additionally, the plaintiff’s evidence was that she felt pressured into signing the deed as she had been told by her solicitors that her solicitors would not litigate her claim.

The defendant did not dispute that the plaintiff was vulnerable when she first brought her claim and likely remains vulnerable as a result of childhood abuse and other factors in her life. The defendant, however, disputed that the evidence showed that the plaintiff felt pressured in settling her 2014 claim. The defendant relies on the following evidence to contend that the opposite appears to be the case:

(a) the plaintiff appears to have been well engaged with her solicitors throughout the period of her claim in 2014-15;

(b) the plaintiff directly communicated her concerns, expectations and wishes in her instructions to RCT and there is nothing in the RCT file to suggest the plaintiff was alcohol-affected or needed a litigation guardian during her previous claim;

(c) Ms Sdrinis explicitly told the plaintiff that there would be no pressure to settle the claim if the plaintiff was not happy with the settlement sum;

(d) the plaintiff was repeatedly invited to seek a second opinion or wait for the Royal Commission to publish its findings;

(e) the RCT file notes say the plaintiff was ‘very pleased’, ‘very happy’, and ‘thrilled’ with the final settlement of $120,000; and

(f) the plaintiff signed the authority and the deed after its terms were explained to her in detail.

The plaintiff’s claim was statute barred

The plaintiff submitted that, in addition to the forensic difficulties her legal representatives had identified, at the time she settled her claim, it was statute barred. The plaintiff’s evidence was that she did not understand the legislative reforms that were being considered by the Victorian Parliament in the first half of 2015, due to her emotional dysregulation and alcohol use at the time.

The defendant conceded that technically the plaintiff’s 2014 claim was statute barred by operation of the former provisions of the Limitation of Actions Act. The defendant argued, however, that the limitation defence had no bearing on the plaintiff’s first claim or its settlement ‘like it would have no bearing on the current proceeding if the [p]laintiff were permitted to continue with it.’ Accordingly, the defendant argued, the limitation defence identified in WCB as a principal barrier to victims of child sexual abuse, which ss 27QD and 27QE were specifically designed to address, was simply not present in the plaintiff’s first claim.

The defendant submitted that it never relied on the plaintiff’s claim being statute barred in assessing or settling the claim. In particular, the defendant referred to the following evidence in support of this argument:

(a) in providing advice to the Department in relation to quantum and liability in December 2014, the VGSO confirmed that the defendant would not rely, formally or informally, on any defence available under the Limitation of Actions Act as instructed since April 2014 and the VGSO had, in the preparation of its advice, also taken into account the Common Guiding Principles which referred to non-reliance on limitation defences;

(b) the Common Guiding Principles, formulated to guide how State departments should ordinarily respond to civil claims relating to child abuse and first released on 8 May 2014, state that departments ‘should not ordinarily rely on a defence that the limitation defence has expired, either formally (for example in pleadings) or informally (for example in the course of settlement negotiations)’;

(c) the final report of the Victorian Parliamentary Inquiry was handed down on 15 November 2013, before the plaintiff brought her 2014 claim. The final report included a recommendation of possible civil justice reform, including the exclusion of criminal child abuse from the operation of the limitation period in the Limitation of Actions Act. On 8 May 2014, the Victorian Government indicated that it supported in principle all of the final report’s recommendations. The plaintiff received advice from RCT about the recommendations of the final report;

(d) the amendments to the Limitation of Actions Act removing the limitation period, the Limitation of Actions Amendment (Child Abuse) Bill 2015 (Vic) (amendment bill) was progressing through the Victorian Parliament from 24 February 2015 to 14 April 2015. Royal Assent was given on 21 April 2015. Accordingly, the defendant submitted, ‘it was evident that Parliament was already well underway in the process of removing the limitations defence when the plaintiff was negotiating the settlement of her claim between 9 January and 16 March 2015, ahead of the deed being signed in March and April 2015’;

(e) the defendant’s initial Calderbank letter of 9 January 2015 did not argue that a reason the plaintiff’s claim would be unsuccessful was because it was statute barred but rather referred to issues about the plaintiff proving her case and causation;

(f) RCT’s file for the plaintiff reveals that the plaintiff’s lawyers did not consider the limitation period to be the plaintiff’s ‘biggest problem’. Rather, RCT was concerned with the necessity for the plaintiff to show that the defendant knew or ought to have known that the plaintiff was at risk; and

(g) the plaintiff has not deposed that the expiry of the limitation period influenced her decision to accept the settlement of her first claim in any way.

The strength of the plaintiff’s case

The plaintiff submitted that, other than the expiration of the limitation period, there is no particular reason why the plaintiff’s cause of action would have failed. Further, the plaintiff said that she did not understand why her original claim was limited to general damages. According to the plaintiff, she has a meritorious potential cause of action, including a claim for pecuniary loss, which has never been adequately assessed.

The defendant submitted that the plaintiff’s argument that there was no ‘particular reason’ why the plaintiff’s cause of action would have failed ignores the records of RCT’s advice to the plaintiff that her case faced significant forensic difficulties. These included lack of evidence of the abuse, difficulty in establishing that the defendant knew or ought to have known the plaintiff was at risk in the Sanders’ household and issues of causation. These issues, according to the defendant, were the primary reason why RCT recommended a settlement range of $35,000-$55,000 and advised the plaintiff that they would not take her case to trial.

Further, the defendant submitted that nothing has changed that would improve the merits of the plaintiff’s case and, indeed the death of the plaintiff’s brother, a key corroborating witness, arguably worsens the plaintiff’s case. The defendant submitted that the removal of the limitation period in 2015 has not improved the plaintiff’s case because ‘it is evident the State never relied on the [limitation defence].’

The plaintiff did not understand the legislative reforms on foot during 2015 due to her emotional dysregulation and alcohol use

As stated above, the plaintiff submitted that she did not understand the legislative reforms that were being considered by the Victorian Parliament in the first half of 2015, due to her emotional dysregulation and alcohol use at the time.

The defendant submitted that the Court should be hesitant to accept the plaintiff’s assertions that she did not understand the legislative reforms on foot in 2015, i.e., the amendments to the Limitation of Actions Act to remove the limitation period from child sexual abuse claims. The defendant argued that the RCT file demonstrates that the plaintiff was informed of the results of the Victorian Parliamentary Inquiry and the Royal Commission in writing, including the possibility of legislative amendments. Additionally, the RCT file shows that the plaintiff’s lawyers, on numerous occasions, offered the plaintiff the option of waiting for the Royal Commission to conclude, noting that the plaintiff may do better if a redress scheme were established. The defendant pointed to the plaintiff’s signed authority, by which the plaintiff acknowledged that she was aware of the Victorian Parliamentary Inquiry and the Royal Commission, that the Victorian Parliamentary Inquiry had made recommendations which may mean that future claims like the plaintiff’s could have greater prospects of success and that her settlement may limit or exclude the plaintiff’s access to any future redress scheme. The defendant points to the plaintiff’s correspondence to RCT on 30 April 2013 in which she states that she had taken a keen interest in the Royal Commission. Finally, the defendant indicates that, through the plaintiff’s various correspondence with RCT, she did not appear to be emotionally dysregulated or alcohol-affected such that her capacity was affected.

Unequal bargaining power between the plaintiff and the defendant

The plaintiff submitted that the defendant, as a large and powerful bureaucratic government entity with significant resources available to defend the claim, was a professional litigant better equipped than the plaintiff, both in terms of financial capacity and psychological strength. The defendant was also not burdened by the same injury that burdened the plaintiff. The plaintiff submitted that notwithstanding the defendant’s adherence to the Model Litigant Guidelines, there was an unavoidable imbalance of power and resources between the parties at the time the plaintiff’s claim was settled. According to the plaintiff, her legal representation at that time only partially ameliorated these imbalances.

The defendant accepts that, as an institutional party, it will often ‘be said to be in a stronger position than an individual who is seeking to issue legal proceedings.’ The defendant, however, submitted that the Model Litigant Guidelines and Common Guiding Principles have been developed to address these issues. The defendant submitted that the Court should not accept the argument that simply because the defendant is the State and ‘merely because of any imbalance of power and resources between the parties’ the Court should exercise its discretion to set aside all previous deeds, as to do so would supersede the ‘just and reasonable’ requirement in s 27QE of the Limitation of Actions Act and be contrary to Parliament’s intention.

Additionally, the defendant submitted that the plaintiff was represented by RCT, a law firm with specialist experience in historical abuse claims, which is an important factor in ameliorating a possible power imbalance between the plaintiff and the defendant.

Evolving community expectations and medical opinion about the lifelong impact of abuse

The plaintiff submitted that, today, community expectations and medical opinion better recognise the lifelong impact that abuse has on a child. The plaintiff accepted that the changes in community expectations and medical opinion since 2015 are perhaps not as marked as the changes in those areas since the late 1990s, but submitted nevertheless that the evolution is continuing.

The defendant submitted that by the time the plaintiff’s claim was settled in 2015, the community well understood the lifelong impact of childhood sexual abuse. According to the defendant, community expectations and medical opinion today cannot be said to be different from how they were in 2015.

Consideration

On 4 March 2015, the plaintiff’s legal representatives communicated the plaintiff’s acceptance of the defendant’s offer of $120,000 and a letter of apology to settle her claim. The abolition of the limitation period did not commence operation until 1 July 2015. I accept that at the time the plaintiff settled her claim it was statute barred.

Clearly, the plaintiff settled her claim close to the time the limitation period was abolished. While I accept that it is likely that the plaintiff’s legal representatives, being experienced in this area of the law, would have been aware of the proposed legislative amendments to abolish the limitation period, there is nothing in their correspondence to the plaintiff advising her that the Victorian Parliament was currently considering legislation to abolition of the limitation period. I also note that, according to the defendant’s submissions, the amendment bill commenced its passage through the Victorian Parliament on 24 February 2015, more than six weeks after the defendant’s first offer of settlement and only eight days before the plaintiff and defendant reached agreement to settle the plaintiff’s claim. On the evidence before the Court in this case, at the time she signed the authority and settled her claim, the plaintiff was not made aware that legislation abolishing the limitation period for child abuse claims was before the Parliament.

The defendant submitted that the existence of the Common Guiding Principles and the absence in its correspondence to the plaintiff’s legal representatives of any reference to the expiry of the limitation period demonstrate that it was clear to the plaintiff and her legal representatives that the defendant would not rely on the limitation period to discount or rebut the plaintiff’s claim. The defendant’s correspondence in response to the plaintiff’s claim did not, however, refer to the Common Guiding Principles or make its position on the limitation period explicit. The absence of a clear exposition of the defendant’s position on the limitation period in correspondence to the plaintiff’s legal representatives stands in contrast to the way its position was clearly stated in the VGSO’s letter to the Department seeking instructions on the negotiating parameters for the plaintiff’s claim.

The Common Guiding Principles referred to how the defendant should ‘ordinarily’ respond to a claim of the kind brought by the plaintiff. At no stage did the defendant notify the plaintiff that it would follow the ordinary course in her claim and not rely on the limitation period issue. The absence of a reference to the limitation issue in the defendant’s correspondence to the plaintiff’s legal representatives is not, in my view, the same as an affirmative statement that the defendant would not be relying, either in negotiation or litigation, on the limitation point in the plaintiff’s case.

Other than the statement of the plaintiff’s legal representative, Ms Sdrinis, that she was confident that the defendant would make an offer to settle the plaintiff’s claim, there is also no reference in the correspondence between the plaintiff and her legal representatives to the defendant’s Common Guiding Principles or clear explanation of their import for the negotiation or litigation of the plaintiff’s claim.

I accept the defendant’s submission that the evidence demonstrates that the plaintiff’s legal representatives identified the limitation issue as secondary to the other forensic issues with the plaintiff’s case. In addition to the evidence of the published Common Guiding Principles and absence of any reference by the defendant to the limitation issue, the evidence before the Court on the limitation issue is as follows:

(a) on 28 February 2013, Ms Sdrinis informed the plaintiff of the Victorian Parliamentary Inquiry and the Royal Commission and alerted her to the option of deferring settlement of her claim until the outcome of those processes was known. Ms Sdrinis, however, advised the plaintiff that ‘[y]ou should note however that if your claim is deferred or delayed, this may prejudice your future entitlements should you subsequently wish to proceed with your legal claim’;

(b) on 21 June 2013, Ms Sdrinis advised the plaintiff that RCT believed it would be difficult for the plaintiff to establish the plaintiff’s legal claim, notwithstanding the significant abuse. Ms Sdrinis also advised the plaintiff, ‘[f]urther you face the statute of limitations which is a law which says that your claim is out of time and even if it was possible to establish legal liability in your claim, an application for an extension of time would have to be made and there is no guarantee that an extension would be granted. Accordingly, there is a real risk in your claim’;

(c) on 20 September 2013, Ms Sdrinis advised the plaintiff that the fact the plaintiff had contacted the Department before her thirty-seventh birthday and the fact the Sanders were dead would not assist the plaintiff in an application for an extension of time to commence a civil proceeding against the defendant;

(d) on 17 December 2013, Ms Sdrinis advised that the report of the Victorian Parliamentary Inquiry recommended the abolition of the limitation period. Ms Sdrinis also advised that it was not clear at that time whether that recommendation would be accepted by the Government and that the question of whether to defer settlement of a claim ‘will be a matter for discussion in each individual case’;

(e) on 8 April 2014, Ms Sdrinis made a file note of her oral advice to the plaintiff that her claim was not strong because of the difficulty of showing that the defendant knew the plaintiff was at risk in the Sanders’ home. Ms Sdrinis advised the plaintiff that she could ‘await the outcome of the Royal Commission to see if that assisted particularly in terms of the limitation period’, noting that Ms Sdrinis did not consider the limitation period to be the plaintiff’s ‘biggest issue’. Ms Sdrinis advised the plaintiff of the option to wait to see if a reparations tribunal was established under a recommendation of the Royal Commission which might provide a better outcome for the plaintiff. Ms Sdrinis advised the plaintiff, however, that further delay would prejudice the plaintiff’s claim;

(f) on 9 April 2014, Ms Sdrinis emailed the plaintiff informing her that, given the legal risks in her claim, RCT would not be prepared to take her case to court;

(g) on 11 April 2014, RCT wrote to the plaintiff advising her against commencing formal proceedings at that time. The basis of this advice, beyond the terms of the previous advice, is not explicit;

(h) on 19 May 2014, Ms Sdrinis informed the plaintiff that she believed the defendant, on receipt of the plaintiff’s draft statement of claim and corroborative material, would make an offer that would lead to negotiations;

(i) on 16 July 2014, Ms Sdrinis wrote to her colleague, Ron, that the plaintiff was having difficulty understanding why her claim was not strong given the extent of the abuse and that Ms Sdrinis had explained to the plaintiff the problems in establishing the defendant knew or ought to have known about the plaintiff’s risk in the Sanders’ house;

(j) on 4 March 2015, the date RCT was obtaining instructions from the plaintiff on the defendant’s final offer, Ms Savidis recorded in a file note that she gave the plaintiff detailed advice about the terms of deed, including the potential loss of the plaintiff’s rights to access any future redress scheme that may be established;

(k) on 16 March 2015, the plaintiff signed the authority and deed. The plaintiff acknowledged in the authority that she was aware that recommendations had been made to the Victorian Parliament ‘regarding legislative amendment and the establishment of an alternative Justice Model which may mean that in the future claims such as mine have greater prospects of success’; and

(l) the plaintiff deposes that after receiving the deed from RCT on March 2015, her lawyer told her ‘there’s not much else that can be done, so either sign or wait 3 years for the Redress Scheme’. The plaintiff also deposes that she cannot recall being told about the legislative changes to remove the limitation period in child sexual abuse cases.

In my view, the evidence on the issue, taken as a whole, establishes that early in her claim, RCT advised the plaintiff of the issues her claim faced, including the limitation issue and the significant uncertainty about whether the Court would extend the time to commence a proceeding. RCT also kept the plaintiff informed of the work of the Victorian Parliamentary Inquiry and the Royal Commission, while at the same time reiterating that delay in resolving her claim would prejudice any future legal proceedings. The repeated advice about the potential impact of deferring the settlement of the plaintiff’s claim until the outcomes of the Victorian Parliamentary Inquiry and the Royal Commission were clear must, in my view, include consideration of the limitation period operating at the time. It is unlikely that the need for advice about the impact of delay was limited to considerations of prejudice, divorced from the limitation period. Similarly, in my view RCT’s advice to the plaintiff in April 2014 about the legal risks involved in her case and that RCT would not be prepared to take the case to court must be viewed against the earlier advice that identified the difficulty in establishing the defendant knew the plaintiff was at risk and the limitation issue. Ms Sdrinis’ reference in April 2014 to the limitation issue not being the ‘biggest issue’ indeed demonstrates that it was an issue under consideration.

The plaintiff settled her claim for $120,000, inclusive of costs, in 2015. The plaintiff submitted that the sum was inadequate, making the settlement ‘modest’. The plaintiff relied on the table of comparable cases prepared by the VGSO in order to obtain instructions on its negotiating parameters to submit that the average settlement at the time on a similar type of claim solely for general damages was in the order of $145,000-$150,000, exclusive of costs, and that this was significantly higher than the $99,000 received by the plaintiff after legal costs were subtracted from the settlement. The plaintiff also submitted that the quantum was very much a reflection of the ‘wisdom and prevailing quantum at the time’ and that today the figure would be much higher.

110 The defendant submitted that the ultimate settlement amount of $120,000 was close to RCT’s first counteroffer of $140,000 and reflects an appropriate discount for litigation risk and early settlement. The defendant also points to the fact that the plaintiff’s legal representatives had advised the plaintiff that a realistic settlement range was between $32,500 and $50,000, well below the ultimate settlement amount, and that the plaintiff herself had identified figures well below the final settlement amount that she would be prepared to accept.

The adequacy of the settlement amount must be assessed against the strength of the plaintiff’s case. The uninformed views of the plaintiff about the amount she desired to settle her claim are unlikely to assist in assessing the adequacy of the settlement against the strength of the plaintiff’s case. Similarly, the plaintiff’s reaction to the settlement may not be a reliable guide to the adequacy of the settlement, that reaction being likely to be influenced by the advice she received from her solicitors about the possible settlement range. In this case, the plaintiff’s solicitors quoted a settlement range that was plainly well below the value of the plaintiff’s claim. Even taking into account the forensic issues, the limitation issues, and perhaps a desire to manage the plaintiff’s expectations, the quoted range is out of step with the award amounts in the comparable cases identified through the VGSO’s research.

The plaintiff’s solicitors clearly assessed the value of the claim, at least in part, on the forensic difficulties they identified in being able to establish that the defendant knew or ought to have known that the plaintiff was at risk at the Sanders’ home. The plaintiff’s current legal representatives do not take the same view of this issue. They rely on the Department’s guidelines requiring regular inspections of foster homes and conclude that, as the Sanders had a one-bedroom house, an inspection was unlikely to have occurred as the Department would have identified the risk.

In my view, the safest guide to the adequacy of the settlement amount is the comparable awards identified by the VGSO. Those cases identified a number of court awards with an average award around $145,000. Those cases, however, included a large number of cases against individuals, as opposed to the State or a business organisation. The awards made in cases against individuals were frequently significantly below $100,000. By comparison, cases involving negligence claims against the State were awarded amounts significantly higher than the average. The VGSO’s letter to the Department seeking instructions for the claim settlement negotiations also identified a claim that was ‘broadly similar’ to the plaintiff’s claim which had settled for $130,000, inclusive of costs. That case involved what appears to be a similar type of abuse over a four-year period, although details of the injury are not provided. The VGSO’s letter identifies the abuse in the plaintiff’s case as having taken place over six to seven years. Absent greater information about the ‘broadly similar’ settled claim, it is difficult to understand why the plaintiff’s claim was not accorded a higher value.

Whether the plaintiff was vulnerable or felt pressured by her own solicitors to accept the settlement is not, on the facts in this case, determinative of whether it is just and reasonable to set aside the deed. While I accept the plaintiff’s vulnerability was likely a product of the injury sustained as a result of the abuse, it is not clear on the evidence that her vulnerability of itself led her to accept an inadequate settlement. In my view, the plaintiff was much more likely to have been influenced by her solicitors’ assessment of her case. Her evidence is that she thought her case was hopeless. She had been advised of the forensic issues on more than one occasion and of the limitation issues.

Similarly, the plaintiff’s submissions about the power imbalance between the parties were pitched at a level of generality that meant they could not be afforded much weight. I agree with the defendant’s submission that the presence of experienced legal representatives on both sides and the defendant’s adherence to the Model Litigant Guidelines suggests that there was not a significant power imbalance between the parties in this case.

I accept that community attitudes and medical opinion in relation to the impact of childhood sexual abuse are evolving and deepening as time goes on. I also accept, however, that the evolution between 2015 and 2022 is not as marked as that between the late 1990s and today. This is not a factor that weighs significantly in the exercise of the discretion in favour of setting the deed aside in this case.

I accept that if the deed is set aside, the defendant will suffer prejudice and that this prejudice is relevant to the exercise of the Court’s discretion to set aside the deed. It will lose the protection of the plaintiff’s releases contained in the deed. It will also be prejudiced by the loss of the opportunity to cross-examine the plaintiff’s brother, a key corroborating witness. I note that the defendant will still be able to make submissions about the weight any trial court should give to the plaintiff’s brother’s statement, if that statement is adduced in evidence. Similarly, the death of the Sanders means they are not available to potentially participate in any trial. I have approached the defendant’s submissions about the potential prejudice through loss of documents and difficulties in identifying witnesses with some caution, given these were put at a level of generality unsupported by evidence of any investigations undertaken by the defendant.

In summary, I am satisfied that the plaintiff’s 2015 settlement was inadequate and was, at least in part, influenced by the limitation issue. Notwithstanding that the defendant will suffer prejudice, taking into account the factors identified by the parties, it is just and reasonable that the settlement deed in this case be set aside.

The defendant’s application to vacate the trial date

The trial of the proceeding is currently listed to commence on 30 August 2022 and is estimated to occupy eight days. The defendant has applied for orders for the trial of the proceeding to be relisted to a date not before December 2022 along with timetabling orders for the parties to undertake outstanding preparatory steps. The plaintiff opposed the defendant’s application.

The defendant relied on the affidavit of Kate Elise Wright affirmed 6 May 2022 in support of its application. Ms Wright’s deposes that:

(a) on 23 June 2021, the Court made orders that the plaintiff file any application to set the deed aside by 17 August 2021;

(b) on 29 October 2021, after being informed by the plaintiff’s legal representatives that the plaintiff was not in a position to make its application until 24 September 2021 (which was ultimately extended to 17 December 2021), the defendant filed a summons seeking to vacate the trial date;

(c) the defendant put the plaintiff on notice that the defendant would press its application to vacate the trial date if the proceeding were delayed further by the plaintiff;

(d) on 7 December 2021, the Court made orders by consent listing the hearing of the defendant’s summons on 6 May 2022 and timetabling various steps to prepare the proceeding for trial;

(e) the plaintiff’s summons seeking orders setting aside the deed was filed on 17 January 2022. The summons listed the application for hearing on 15 March 2022;

(f) the plaintiff consented to extend the time by two weeks for the defendant to file its affidavit material in response to the plaintiff’s application to set aside the deed;

(g) the defendant consented to extend the time for the plaintiff to file its submissions in support of the application to set aside the deed. The plaintiff did not comply with the extended timetable and provided the defendant with an unfiled position paper on 9 March 2022, which it revised later that day;

(h) due to the delay in preparing the application the hearing of the plaintiff’s summons was relisted to 10 May 2022;

(i) the defendant filed its submissions in opposition to the plaintiff’s application on 11 April 2022;

(j) the following steps in the preparation of the proceeding for trial remain outstanding:

(i) the plaintiff is yet to file Particulars of Special Damages and expert evidence in support of her claim for economic loss despite these being due to be completed by 1 April 2022 under current orders of the Court;

(ii) the defendant has not filed any expert evidence which was due to be filed by 2 May 2022. The defendant intends to obtain an expert psychiatric report prior to mediation and the trial and the plaintiff is scheduled to see the defendant’s consultant psychiatrist on 1 June 2022;

(iii) the defendant will decide whether it will seek expert evidence in relation to the plaintiff’s economic loss claim after considering the plaintiff’s Particulars of Special Damages and the nature and scope of the plaintiff’s economic loss claim;

(iv) the parties have not yet attended mediation, which is due to be completed by 15 June 2022; and

(v) the parties have not issued subpoenas.

The plaintiff relied on the affidavit of Samantha Camilleri affirmed 6 May 2022 in opposition to the defendant’s application. Ms Camilleri’s detailed affidavit sets out the correspondence between the parties and to and from the Court regarding the timetable for both the plaintiff’s application to set aside the deed and the trial of the proceeding. It is clear that the plaintiff was delayed in preparing its application due to delays in obtaining the plaintiff’s previous legal representatives’ file, medical records and subpoenaed material. It is equally clear that the defendant’s delay in preparing its material opposing the plaintiff’s application was due to issues in accessing the plaintiff’s previous legal representatives’ file. Ms Camilleri also deposes that the plaintiff has repeatedly requested an indication from the defendant about whether it intends to have the plaintiff assessed by the defendant’s expert.

I accept the plaintiff is vulnerable and does not want her proceeding delayed. Trial dates are not to be vacated lightly. It appears to me, however, that the delay in the hearing and determination of the plaintiff’s application to set aside the deed means that the current trial date is no longer tenable, in light of the preparatory steps remaining to be completed.

For the reasons provided above, I have decided that it is just and reasonable to make an order setting aside the settlement deed executed on 1 April 2015. I have also decided that the trial date of 30 August 2022 should be vacated. I will request that the parties liaise and prepare orders giving effect to this ruling. If the parties are unable to agree on the terms of those orders or the question of costs, the matter will be relisted.

[2022] VSC 456

11 August 2022