WPM v Trustees of the Christian Brothers
[2020] WADC 112
•19 AUGUST 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: WPM -v- TRUSTEES OF THE CHRISTIAN BROTHERS [2020] WADC 112
CORAM: STAVRIANOU DCJ
HEARD: 1 JULY 2020
DELIVERED : 19 AUGUST 2020
FILE NO/S: CIVO 333 of 2019
BETWEEN: WPM
Plaintiff
AND
TRUSTEES OF THE CHRISTIAN BROTHERS
First Defendant
BROTHER VINCENT FRANCIS DUGGAN
Second Defendant
BROTHER PETER BERNARD CLINCH
Third Defendant
Catchwords:
Civil procedure - Application to set aside settlement agreements and for leave to commence an action for a child sexual abuse cause of action - Whether 'just and reasonable to do so' - Turns on its facts
Legislation:
Civil Liability Act 2002 (WA)
Civil Liability Amendment (Child Sexual Abuse Actions) Act 2018 (WA)
Limitation Act 1935 (WA)
Limitation Act 2005 (WA)
Result:
Leave given to commence an action for child sexual abuse
To extent necessary settlement agreements set aside
Representation:
Counsel:
| Plaintiff | : | Mr T J Hammond |
| First Defendant | : | Mr J J Noonan QC & Ms A Liscia |
| Second Defendant | : | Mr J J Noonan QC & Ms A Liscia |
| Third Defendant | : | Mr J J Noonan QC & Ms A Liscia |
Solicitors:
| Plaintiff | : | Rightside Legal |
| First Defendant | : | Irdi Legal |
| Second Defendant | : | Irdi Legal |
| Third Defendant | : | Irdi Legal |
Case(s) referred to in decision(s):
ARA v The Perth Diocesan Trustees [2020] WASC 188
Bull v The Attorney General [1913] HCA 60; (1913) 17 CLR 371
JAS v The Trustees of The Christian Brothers [2018] WADC 169
JS v The State of Western Australia [2019] WADC 136
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
TRG v Board of Trustees of the Brisbane Grammar School [2019] QSC 157
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565
STAVRIANOU DCJ:
Introduction
The plaintiff, WPM, seeks leave pursuant to s 92 of the Limitation Act 2005 (WA) to commence an action for damages for sexual, physical and mental abuse and to set aside settlement agreements entered into in relation to the alleged abuse.
The abuse is alleged to have occurred between 1954 and 1961 whilst the plaintiff was living at the Bindoon Farm School and under the care of the first defendant, the Trustees of the Christian Brothers. The perpetrators of the abuse are alleged to include a number of Christian Brothers and other residents at the Farm. The third defendant's liability is said to arise pursuant to s 15B of the Civil Liability Act 2002 (WA) on the basis that he is the holder of an office of authority in the Roman Catholic Order of the Congregation of Christian Brothers, for the purpose of the operation of Homes and Orphanages by the Christian Brothers in Western Australia.
The plaintiff's proposed causes of action became time barred many years ago. In 2009 and 2014 he entered into settlement agreements evidenced by deed (2009 Deed and 2014 Deed) relating to claims for damages for abuse.
In 2018 amendments were made to the Limitation Act 2005 and the Civil Liability Act 2002 (WA) by the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA) to enable claims for damages for historical sexual abuse to proceed. The amendments came into effect on 1 July 2018 and included provisions removing time limitations and enabling the setting aside of settlement agreements in relation to claims for sexual abuse. Relevantly, s 92 of the Limitation Act 2005 states that a court may, if satisfied that it is just and reasonable to do so, set aside a settlement agreement in relation to a previously settled cause of action.
The defendants oppose the grant of leave to commence an action and the setting aside of the 2014 Deed. The defendants do not oppose the setting aside of the 2009 Deed.
The issue in this case is whether it is 'just and reasonable' to give leave to commence the proposed action and to set aside the 2014 Deed.
Background
The hearing of the application proceeded on affidavit.
The plaintiff is aged 75 years having been born on 24 July 1945 in the United Kingdom. At the age of 5 years he was placed into an orphanage. When he was about 9 years of age he was sent to Australia under a child migration programme. Upon arrival he was taken to Castledare Junior Orphanage for Boys for one day and then to the Bindoon Farm School.
In an affidavit made on 11 June 2019 the plaintiff outlines the effect of the abuse as follows:
9.I hate what the Brothers of the Catholic Church did to me. This hatred used to consume me and make me incredibly angry. I have learnt to manage these feelings now. For many years I blamed myself and experienced immense guilt and shame for what occurred at Bindoon. I have always felt insecure and have very little confidence. I learnt to hide this by drinking alcohol and pretending I could do things that I could not do.
10.1 feel like my whole life is a battle and I am exhausted in every sense: physically and emotionally, psychologically and spiritually. I feel cheated of a normal, healthy life.
11.1 have not been able to be the loving husband and father that I should have been. My wife has tolerated so much, and my sons have grown up afraid of my anger and mood swings. My daughter, who is more sensitive, took on board a lot of my pain.
12.I have suffered severe anxiety since childhood and have had frequently experienced debilitating panic attacks with morbid fear. This generalised anxiety has seen me absent from my roles as husband and father. I live in a state of hyper‑vigilance and worry. I lack faith in mankind and find no solace in religion. I have been diagnosed as having Post‑Traumatic Stress Disorder. I have suffered from depression and have taken anti‑depressants for extended periods of my life.
The plaintiff has to date received a total of $404,254.98 in relation to claims for abuse particularised as:
1.$45,000 in 2009 pursuant to a State Government Redress Scheme.
2.$40,000 pursuant to the 2009 Deed.
3.$20,000 in 2009 from the Benedictine Community of New Norcia.
4.$299,254.98 (inclusive of $49,254.98 for legal costs) pursuant to the 2014 Deed.
The legislation and legal principles
Prior to the 2018 amendments the Limitation Act 1935 (WA) applied to the plaintiff's proposed causes of action. It required a plaintiff seeking to claim damages for personal injury to commence proceedings within six years of the accrual of the cause of action subject to some identified extensions. A permissible extension was allowed for incapacity by virtue of age. In such a case the limitation period did not commence to run until the person attained the age of majority. There was no provision for an extension of time. Accordingly, in this case, the plaintiff's causes of action became statute barred in 1972 when he turned 27 years of age. The plaintiff would, absent the amendments, be left with no remedy.
The Limitation Act 2005 does allow for extensions of time. However, that Act applies only to causes of action which accrued after its commencement date of 15 November 2005. In the circumstances the plaintiff could not rely upon the 2005 Act to obtain an extension of time to commence an action for damages.
On 1 July 2018 s 6A of the Limitation Act 2005 became operative. The effect of the section was to remove any limitation period for child abuse actions.
Section 6A reads:
6A.Special provisions for child sexual abuse actions: no limitation period
(1)In this section -
child means a person under 18 years of age;
child sexual abuse, of a person, means an act or omission in relation to the person, when the person is a child, that is sexual abuse;
child sexual abuse action means an action on a child sexual abuse cause of action;
child sexual abuse cause of action means a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person.
(2)Despite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action.
(3)The following provisions do not apply in respect of a child sexual abuse action -
(a)the Crown Suits Act 1947 section 6 (as applying under the Limitation Legislation Amendment and Repeal Act 2005 section 8);
(b)the Limitation Act 1935 section 47A (as applying under the Limitation Legislation Amendment and Repeal Act 2005 section 4);
(c)section 5 of this Act.
(4)This section applies regardless of whether the action is brought in tort (including trespass), in contract, under statute or otherwise.
(5)This section does not limit -
(a)any inherent, implied or statutory jurisdiction of a court; or
(b)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
Note for this subsection:
For example, this section is not intended to limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
(6)A cause of action referred to in the definition of child sexual abuse cause of action does not include a cause of action, action on which could not be maintained but for the Fatal Accidents Act 1959 or the Law Reform (Miscellaneous Provisions) Act 1941.
(7)The Minister must carry out a review of the operation and effectiveness of this section and Part 7 as soon as is practicable after the 3rd anniversary of the day on which the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 section 10 comes into operation.
(8)The Minister must prepare a report based on the review and, as soon as is practicable after the report is prepared, cause it to be laid before each House of Parliament.
Pausing there it is to be noted that s 6A(5) preserves the inherent, implied or statutory jurisdiction of a court. The note to the section specifically identifies a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on a defendant that is so serious that a fair trial is not possible.
Section 92 of the Limitation Act 2005 relevantly deals with previously settled causes of action and is contained within the transitional provisions of that Act. It reads:
92.Previously settled causes of action
(1)This section applies in relation to a proposed action on a previously settled cause of action and to the agreement effecting the settlement (the settlement agreement).
(2)Application may be made to a court that would have jurisdiction to deal with the action, but for the settlement agreement, for leave to commence the action.
(3)The court may, if satisfied that it is just and reasonable to do so -
(a)grant leave to commence the action, subject to conditions; and
(b)to the extent necessary for that, set aside the settlement agreement and any judgment giving effect to the settlement.
(4)If an action on the previously settled cause of action is commenced, the settlement agreement and each agreement relating to the settlement, other than a contract of insurance, is, despite any written or other law, void to the extent to which it relates to the child sexual abuse the subject of the cause of action.
(5)A party to an agreement that is wholly or partly void under subsection (4) cannot seek to recover an amount paid by or for the party under the agreement on the basis that the agreement is void to that extent.
(6)The court dealing with the action may, if satisfied that it is just and reasonable to do so, take into account any amount paid under an agreement that is wholly or partly void under this section, to the extent to which the amount relates to the child sexual abuse the subject of the cause of action.
(7)For the purposes of subsection (6), amounts paid under an agreement are taken to relate to the child sexual abuse the subject of the cause of action to the extent of 50% if the agreement -
(a)does not relate solely to that child sexual abuse; and
(b)does not expressly deal with the extent to which the agreement and amounts paid under it relate to that child sexual abuse.
As noted the issue in this case is whether it is just and reasonable to grant leave to set aside the 2009 and 2014 Deeds. The other matters required to be established by s 92 are conceded by the defendants.
There is no definition of the expression 'just and reasonable' and no identified criteria contained in the Limitation Act 2005.
Section 18 of the Interpretation Act 1984 (WA) provides that in the interpretation of a written law (including all Acts for the time being in force) a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
Section 19 of the Interpretation Act identifies extrinsic material which a court may consider in the ascertainment of the meaning of a provision in a written law or to determine the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning. The material which may be considered includes any relevant report of a Royal Commission, any explanatory memorandum relating to the Bill containing the provision and the second reading speech.
In 2012, the Commonwealth government established a Royal Commission into Institutional Responses to Child Sexual Abuse. In September 2015 the Commission issued a report entitled 'Redress and Civil Litigation Report'. It contained a recommendation for the removal by state and territory governments of any limitation period that applied to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child. There was a further recommendation that the removal of the limitation period was to have retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past (recommendations 85 and 86).
The second reading speech in relation to the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 was delivered by the Attorney General, the Honourable Mr J R Quigley, on 22 November 2017. The speech clearly identified that the intention and purpose of the legislation was to enable victims of historical sexual abuse to be able to maintain claims for damages arising out of the abuse. In his speech the Attorney General dealt with the removal of the limitation period, setting aside of settlement agreements and the capacity to maintain proceedings.
The Attorney General said in relation to the removal of the time limitation:
Statutory limitation periods determine the time within which a claim for damages must be commenced. The Royal Commission into Institutional Responses to Child Sexual Abuse found that the average time for a victim to disclose child sexual abuse was 22 years. At present under the Limitation Act 2005 of Western Australia, a claim must be brought within three years of the cause of action arising or, in the case of a child, by their twenty-first birthday.
Limitation periods under the previous Limitation Act 1935 of Western Australia will apply to many historical child sexual abuse cases - when sexual abuse was suffered before 15 November 2005, a person had six years to commence a claim for personal injuries damages. Given these limitation periods, it is obvious that most victims of abuse in Western Australia are unable to sue for damages when they finally disclose their abuse. The royal commission recommended that state and territory governments legislate to retrospectively remove any limitation periods that apply to a claim for damages resulting from child sexual abuse.
The sexual abuse of children is one of the most abhorrent crimes imaginable and the fact these crimes may have happened many years ago should not be a barrier to being able to seek justice and compensation in our civil courts. The Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 of Western Australia seeks to remedy this. The bill removes limitation periods for all child sexual abuse actions, both retrospectively and going forward. The amendments will define a child as a person under 18 years of age. The phrase 'sexual abuse' has not been defined in the bill and the court will have latitude to determine it in accordance with the ordinary meaning and common understanding of the term. A court will not be confined to acts or omissions that are criminal offences.
A cause of action for child sexual abuse could lie against the actual perpetrator of the abuse or against an institution, when an institution was legally responsible for the actions of the perpetrator such as when the institution was negligent and that negligence resulted in the child not being protected from sexual abuse. The removal of limitation periods for child sexual abuse actions applies to all such claims.
Claims by a third party arising from the child sexual abuse are specifically excluded in historic claims - that is, claims that would have been statute barred but for the amendments introduced - so there is no change to the limitation periods that apply to these kinds of claims. Lifting the limitation periods for claims arising from child sexual abuse will not affect the limitation periods that apply to dependants' claims arising under the Fatal Accidents Act 1959 of Western Australia or deceased estate claims.
As to the existence of a prior settlement agreement the Attorney General said:
The bill seeks to strike a balance between the principle that once a court has finally determined a case, it ought not to be re-litigated and the policy to allow victims to sue when they were impeded in doing so by limitation periods. The bill includes transitional provisions to allow a court to set aside previous settlement agreements or court orders in limited circumstances; that is, when a judgement was given on the basis that the action was statute barred or a matter was previously settled after the limitation period had expired.
As to the capacity to institute proceedings the Attorney General said:
The bill also goes further than removing the limitation periods for child sexual abuse. In a first for Australia, the bill provides a legal basis for suing institutions for historical child sexual abuse in the name of the current office holders. At present, there are legal difficulties in suing an unincorporated institution. Many of the churches and other institutions involved are not, or were not at the time, incorporated. These provisions are required to overcome the difficulties that a victim may face in identifying a proper defendant, particularly those arising out of the lack of perpetual succession in unincorporated institutions as identified in the New South Wales Court of Appeal decision of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis and Another (2007) 70 NSWLR 565.
The bill sets out detailed provisions to be able to link a historical institution to its current form. Liability will still need to be established against the historical office holder in accordance with ordinary legal principles. However, when the current institution and office are substantially the same as they were, the current office holder may be sued and can be liable in place of the historical office holder. Further provisions provide that a current institution can be taken to be the relevant successor of an earlier institution in specified circumstances. Notwithstanding these provisions, it is possible that a particular set of circumstances arise that was not contemplated by the legislation, or an institution may request to be identified as the proper defendant. For this reason, the bill includes a regulation-making power whereby the Governor may, on the recommendation of the minister, provide in regulations that for the purposes of the act a current institution is the relevant successor of the earlier institution that existed at the time of the accrual of the cause of action. The regulation-making power is not unfettered. The minister cannot make a recommendation for the purposes of such regulations unless satisfied that the current institution has some relevant connection to the earlier institution, or the individual or body with overall responsibility for the current institution has agreed to the current institution being taken to be the relevant successor of the earlier institution.
The bill also contains provisions at proposed sections 15C and 15E that provide a legal basis for institutions, trustees and office holders to use assets that are held by or for liable institutions or office holders to discharge any child sexual abuse liability. These provisions are declared to be corporations legislation displacement provisions under section 5G of the Corporations Act 2001 of the commonwealth, for the purposes of enabling directors or other officers of corporations to exercise their powers without contravening the corporations legislation.
In the circumstances the legislation being remedial, if any ambiguity existed it should be construed beneficially. The true signification of the provision should not be strained, but it should be construed so as to give the fullest relief which the fair meaning of the language will allow: Bull v The Attorney General [1913] HCA 60; (1913) 17 CLR 371, 384 (Isaacs J).
In JAS v The Trustees of The Christian Brothers [2018] WADC 169 the plaintiff made application under s 92 of the Limitation Act 2005 for an order in relation to a deed of settlement and release with respect to a claim for damages for child sexual abuse. Chief Judge Sleight set aside the deed. His Honour noted at [8] that the criteria to be satisfied for the application were:
1.the plaintiff has entered into a settlement agreement;
2.the settlement agreement relates to a child sexual abuse cause of action;
3.that at the time the settlement agreement was entered into the child sexual abuse cause of action was statute barred;
4.the application is made to a court that would have jurisdiction to deal with such an action; and
5.the court is satisfied that it is 'just and reasonable' to:
(i)grant leave to commence a proposed cause of action on a previously settled cause of action; and
(ii)to the extent necessary for that, set aside the settlement agreement and any judgment giving effect to the settlement.
His Honour noted that there was no definition of 'just and reasonable' in s 92 of the Act. He considered the power to be exercised was a broad one. The burden was on the plaintiff to demonstrate it was just and reasonable for leave to be granted. In interpreting and applying the test contained within s 92, his Honour considered the statutory context and in particular, the explanatory memorandum to the Bill containing s 92. His Honour also noted that as the amendments were inserted for remedial purposes, they should be construed beneficially. The explanatory memorandum to the Bill is referred to in JAS by the Chief Judge as follows:
24.In deciding what emphasis should be given in deciding the question of whether in a particular case it is 'just and reasonable' to give leave to commence an action, I believe assistance can be gained by considering the legislative context in which s 92 of the Act was introduced. Also under common law principles of statutory interpretation, it is relevant to consider the mischief intended to be remedied by the introduction of s 92 and the other provisions of the amending Act.
25.The explanatory memorandum to the amending Act stated as follows:
Part 3 of the Bill sets out the amendments to the Limitation Act 2005 (WA) to remove limitation periods for all child sexual abuse actions, both retrospectively and prospectively. This implements recommendations 85 – 86 and 88 of the Royal Commission Report. Without removal of these timeframes, the Royal Commission found that survivors, who typically do not report their abuse for long periods after the Limitation period has expired, would be unable to have their claims of child sexual abuse determined by a court on the merits.
Part 3 also aims to remedy some of the past injustice caused by the operation of strict time limitation periods to child sexual abuse actions by providing for the setting aside of previously barred and previously settled causes of action under certain conditions.
26.In my opinion, the evaluative judgment to be made under s 92 as to whether it is 'just and reasonable' should take into account these remedial principles which are obviously intended by the amendments to the Act. (endnotes omitted)
The Chief Judge identified a number of reasons why it was just and reasonable to grant leave to the plaintiff to commence an action. These may be summarised as:
1.As a general rule there is no statutory limitation period for such a claim.
2.At the date the plaintiff entered into the settlement agreement his claim under existing law was statute barred. This meant that his bargaining position was severely curtailed and he was left with no real choice but to accept whatever amount was offered by the intended defendant without it being necessarily a reflection of his proper entitlement if he was successful in an action against the intended defendant.
3.The extent of the plaintiff's entitlement if successful on such a cause of action has never been decided on its merits.
4.If leave is given the court dealing with the action may, if it is satisfied that is just and reasonable to do so, take into account any amount paid under a settlement agreement to the extent that it relates to the child sexual abuse the subject of the cause of action. Accordingly, the defendant is not likely to be financially disadvantaged by having made the payment under the settlement agreement.
5.Granting leave to commence an action is consistent with the broad intention of the amending Act to remove legal barriers to claimants commencing an action and having their claims decided on their merits.
6.The defendant did not oppose the application.
His Honour's approach to the intention and context of the amendments is supported by the Law Reform Commission Report and the second reading speech referred to above ([21] - [25]).
The only other published decisions in relation to s 92 of the Limitation Act 2005 are ARA v The Perth Diocesan Trustees [2020] WASC 188 and JS v The State of Western Australia [2019] WADC 136. In each case the decision in JAS was referred to. In ARA Kenneth Martin J specifically adopted the reasoning of Sleight CJDC in JAS. I similarly adopt and apply the reasoning in JAS.
In TRG v Board of Trustees of the Brisbane Grammar School [2019] QSC 157 the plaintiff made application pursuant to s 48 of the Limitation of Actions Act 1974 (Qld) for an order setting aside a settlement agreement to enable a claim for damages for sexual abuse to proceed. The application was refused. Section 48 imposes a 'just and reasonable' test in relation to setting aside of settlement agreements.
Davis J in his reasons noted that in practical terms, the limitation issue was not the applicant's real problem: TRG [232]. His Honour accepted that there was no direct evidence the limitation issue was taken into account in calculation of the final settlement figure.
In the TRG decision a number of factors are identified which informed the exercise of discretion. Factors referred to were:
1.The prospects of success in any claim and the quantum of any claim brought now. His Honour accepted that the prospects of success were good and that any new proceedings were likely to yield significantly more than the settlement sum.
2.The effect of the Limitation Act2005 on the quantum of the settlement. His Honour found that the limitation issue was not the applicant's real problem. The problem was satisfying a court in relation to the defendants' liability. His Honour found that the limitation issue did not materially affect the quantum agreed upon or the decision to settle.
3.The mediation process. His Honour noted the plaintiff's concession that the mediation was fair and reasonable at the time was properly made.
4.The reasonableness of the earlier settlement and the fact it reflected the strengths and weaknesses of the parties.
5.The impact of delay. His Honour found that the respondent would be prejudiced in the defence of any new proceedings.
His Honour referred to the fact that the settlement was a product of fair, arms‑length negotiations between two parties on equal footing, both appropriately represented.
The decision in JAS was delivered on 11 December 2018. TRG was heard on 4 October 2018 and delivered on 21 June 2019. There is no reference in TRG to JAS and it can be assumed the decision was not referred to the judge after he reserved. The decision in TRG is subject to an as yet undetermined appeal. Each of TRG and JAS involved an exercise of discretion and the reasons in each case need to be considered on the basis of the relevant factual circumstances. It is accepted that the determination of the just and reasonable test requires a consideration of all the circumstances. As submitted by the plaintiff there are at least two significant distinguishing features of the present case from the situation in TRG. First, unlike in TRG in this case at the relevant date there was no capacity for the plaintiff to apply for an extension of the limitation period. Thus in TRG the plaintiff, if he had obtained an extension, could have proceeded with his claim. The plaintiff's claim could not succeed at trial if the limitation issue or the identity of the defendant remained as issues. Secondly, the circumstances surrounding the entry into each of the settlement agreements were different. The settlement agreement in TRG was reached about two weeks after the mediation. In this case the plaintiff's position was that he knew he had no legal rights when he went to the mediation. He signed the 2014 Deed on the day of the mediation.
The mediations, the deeds and circumstances of their execution
On 16 September 2009 the plaintiff participated in a mediation conference with two Christian Brothers. The plaintiff attended with Ian Thwaites from the Child Migrant Trust. The plaintiff in his affidavit made 21 April 2020 describes that he 'felt he had to accept the $40,000 offered'. In his affidavit the plaintiff states that he had discussed his legal position with the Child Migrants Trust and understood that he could not succeed in a claim against the first defendant.
On 22 September 2009 the plaintiff executed the 2009 Deed.
The 2009 Deed recited that the plaintiff had made allegations of abuse and that the plaintiff and first and second defendant had agreed to settle the claims on the terms as contained in the 2009 Deed. The first defendant is defined as the Body Corporate. The second defendant is defined as the Institute.
The 2009 Deed included the following provisions:
2. Settlement
2.1In consideration of the Releasor's promises set out in this Deed, the Body Corporate and the Institute agree to pay the Releasor the settlement amount of $40,000.00 (forty thousand dollars) inclusive of all costs and disbursements and the provision of counselling. ('the agreed sum').
2.2The Releasor acknowledges that the agreed sum is paid:
2.2.1for and on behalf of the Body Corporate and the Institute;
2.2.2in full extinguishment of his rights against the Body Corporate and the Institute; and
2.2.3subject to deduction of any amount so required pursuant to the provisions of the Health and Other Services (Compensation) Act 1995 (Cth) or any related legislation or any social services (Centrelink) legislation of the Commonwealth of Australia.
2.3The Institute will cause the payment of the agreed sum to be made to the Releasor within 28 days of the return of this Deed executed by the Releasor to the solicitors for the Body Corporate and the Institute or other nominated representatives.
2.4The Releasor undertakes and agrees to pay out of the agreed sum any moneys repayable by the Releasor to any person or body whether in respect to social services, sick leave payments, make up pay, accident pay or any charges or moneys assessed under the Health & Other Services (Compensation) Act 1995 (Cth) and any social services (Centrelink) legislation of the Commonwealth of Australia and any other relevant legislation.
3. Release
3.1The Releasor for himself, his executors, administrators, dependants, heirs and assigns hereby releases and forever discharges the Body Corporate and the Institute from any claim, proceeding, action, cause of action or charge that he may have or may have had against the Body Corporate or the Institute with respect to the claims.
3.2The Releasor acknowledges having been informed of his right, and having been allowed reasonable time, to seek independent legal advice prior to his signing of this Deed of Release.
4. No liability and bar to further claims
4.1The Releasor acknowledges and agrees that:
4.1.1he will make no further claim for damages, expenses, treatment costs or compensation;
4.1.2nothing in this Deed constitutes an admission of liability by the Body Corporate or the Institute in respect of the claims;
4.1.3this Deed may be pleaded by the Body Corporate and the Institute as a bar to any claim, cause of action, charge or any other proceeding commenced against them or any other person;
arising out of or in connection with the acts, facts or circumstances constituted by the claims.
The plaintiff was unhappy with the outcome of the mediation process. A further mediation was then arranged at which the plaintiff was told the first defendant was not going to offer any more money. The defendant's position is that it accepts that, as the plaintiff did not have legal representation to advise or assist with respect to the 2009 negotiations, the court may be 'inclined to find differently with respect to the 2009 Deed' as compared to the 2014 Deed.
In or about 2014 the plaintiff saw a television advertisement placed by a firm of solicitors in relation to historical sexual abuse claims. Ultimately he engaged that firm to act on his behalf. As noted in 2012, the Royal Commission had been established. On or about 26 March 2014 the plaintiff gave evidence to the Royal Commission.
By letter dated 14 February 2014 from the plaintiff's solicitor to the Executive Officer of the first defendant's Professional Standards Office a request was made for a re‑examination to occur of the plaintiff's claims.
By letter dated 24 March 2014 the solicitors for the first defendant wrote to the plaintiff's solicitors stating that: '… the Christian Brothers do recognise that the issue of compensation‑reparations does need to be revisited'.
Howard Gerard Harrison has acted as the principal solicitor for the Christian Brothers in advising, negotiating and resolving claims of historical abuse. Mr Harrison has sworn an affidavit on 12 March 2020 on behalf of the defendants.
A meeting was held in late April 2014 or early May 2014 to discuss the issue of compensation for the plaintiff. The plaintiff was in attendance and handed to the first defendant's solicitor a handwritten note dated 30 April 2014. The final sentence of the note reads 'We are not prepared to settle for less than $700,000 after costs'. There was no resolution. The plaintiff's evidence is that he felt insulted and hurt by the conduct of the Christian Brothers in not paying him what he was asking.
On 1 and 2 May 2014 Mr Harrison gave evidence to the Royal Commission. He was asked about historical cases of sexual abuse and in the course of his evidence was asked about what might broadly be described as Ellis issues and the existence of insurance. In his evidence he said on 1 May 2014:
Ms Furness: Was there any defendant that you believe could have been put forward in 1993 who would have had the requisite liability and the funds to meet any judgment?
Mr Harrison: I think Mr Gross's advice - I mean, the obvious defendant, which was defendant number 1, and the - it was the Trustees of the Christian Brothers, the body corporate under the 1942 Roman Catholic Church Community Lands Act - now, that company couldn't be sued obviously in relation to pre-1942 issues, of which there were a number.
Ms. Furness: The short answer is there wasn't any, isn't it?
Mr Harrison: Well, I think counsel's advice was, even though the Act was only amended in 1986 to give it a capacity to be involved in operational issues with schools, if that entity was in fact being used beforehand ultra vires, it may still be - I - we certainly flagged that issue to Slater & Gordon as a consideration. I don't think we ever pleaded it. And I think there is correspondence somewhere indicating some reluctance to get down to that kind of technical level.
On 2 May 2014:
The Chair:Mr Harrison, who was the insured under the CCI policy?
Mr Harrison: I think the Trustees of the Christian Brothers, a body corporate pursuant to the 1942 Act, and the congregational leader and servants or agents.
The Chair:It does make the debate in the Court of Appeal somewhat ironic, doesn't it? Because there the Brothers were saying, 'No, there is nothing you can sue', yet there was an entity that was insured.
Mr Harrison: Now, your Honour, I can't remember whether the Brothers were saying that or whether the Archbishop of Perth was saying that. I always felt we were slow to go down the Ellis v Pell road, but I, your Honour, can't remember.
Ms Furness:When you say 'slow to', you did, didn't you?
Mr Harrison: I don't think we pleaded it or - -
Ms Furness:No, but it was clearly one of the two challenges in the litigation for the plaintiffs because of the issue of who the proper defendant was. Isn't that right?
Mr Harrison: Yes.
Ms Furness:You might have been slow, but you got there in the end, didn't you, Mr Harrison, by using that argument to affect the plaintiffs' chance of success.
Mr Harrison: Yes.
…
Ms Furness:So a vehicle for the movement of insurance money came into existence, but the Order were saying 'No, there is nothing you can sue'?
Mr Harrison: I'm just a bit resistant, your Honour, to completely agree with that latter proposition. But I don't cavil with your Honour.
By email dated 25 June 2014 the first defendant's solicitors wrote to the plaintiff's solicitors in the following terms:
We refer to our discussions in Perth on 16 June last.
We note that unfortunately, little progress was achieved in trying to resolve the matter at that time.
We note that proceedings are currently on foot vis-à-vis the Royal Commission.
We confirm that the Trustees have offered support in any counselling that [WPM] might require and that there was also some discussion around the possibility of an advance payment of some sort should there be a need pending a complete resolution of issues.
We note your instructions that your client will not consider any figure less than his stipulated offer of $700,000 plus costs.
The Christian Brothers do wish to resolve this matter with an offer which is fair, just and reasonable.
It is accepted that [WPM] has suffered egregiously whilst in the care of the Brothers and that this is a very serious case.
Nevertheless, there has to be some reference points to the assessment of fair, just and reasonable compensation and it is noted that there have been previous payments in the order of $105,000, an earlier Deed of Release and of course, the legal position in relation to such cases that is well understood and has to be one of a number of issues on the table for consideration.
We note that on Monday, we foreshadowed an offer that might be forthcoming from the Trustees involving a significant payment but were advised by you - requested by you, not to put such an offer as anything less than [WPM]'s figure would be completely unacceptable.
We note that we have also discussed options around formal mediation or neutral case evaluation possibly with an experienced Silk in Perth such as Mr Darryl Williams QC.
At this stage, we are instructed not to put a formal counter offer in all of the difficult circumstances pending ongoing consideration in relation to ADR, neutral evaluation or other options.
We are happy to discuss any other approach to the matter but confirm that our client is unable to settle this case for $700,000 plus costs but willing to negotiate if and when that is possible.
Mr Harrison notes in his affidavit that discussions commenced between the plaintiff's lawyers and himself and proceeded to a settlement conference on 16 June 2014. He refers to the fact that at the conference he, on behalf of the first defendant, said it would not be accepting or making offers in the range the plaintiff had demanded in his note of 30 April 2014. He was told by the plaintiff's representative at the meeting that the sum claimed was not negotiable.
Three things need to be noted in relation to the plaintiff's legal position in 2014. First any proposed claim by the plaintiff was statute barred. Whilst a limitation provision is procedural it still loomed as a factor in the assessment of the plaintiff's claim. Coupled with this there was no capacity for an extension of the limitation period. Second there was real difficulty in establishing an appropriate defendant in circumstances where the first defendant in proposed proceedings is an unincorporated association and where there was no relevant office holder with perpetual succession. This barrier had been highlighted in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565. Thirdly the 2009 Deed of Release purported to bar any claim by the plaintiff. The 2014 settlement took place in the context of these matters.
Mr Harrison in his affidavit refers to a mediation held on 26 November 2014. Mr Harrison in his affidavit identifies what he describes as 'factors relevant to the consideration of the re‑examination of WPM's claim'. There then follows a list of matters including knowledge, causation, lack of evidence and difficulty in proof of loss. He goes on to state the amount offered was a sum that constituted fair and reasonable compensation. Notwithstanding what is said, issues as to the deed, the expiry of the limitation period and the identity of the proposed defendant were fundamental to a consideration of the position of the parties. The negotiations at the mediation extended over a period of between 5 ‑ 6 hours. Mr Harrison deposes that he recalls that 'the Limitation Act (WA) was at no stage the subject of discussions during the mediation'. Beyond that there is very little evidence as to what occurred at the mediation. It is the case that the plaintiff's costs and those of his wife of attending the November 2014 mediation, including travel and accommodation were met by the defendants. The defendants also met the mediator's costs. Similarly the costs in relation to the June 2014 settlement conference were met by the defendant.
The plaintiff describes what occurred at the mediation in his affidavit made 21 April 2020 as follows:
12.On 26 November 2014 I attended the mediation in Sydney with the Christian Brothers. I attended the mediation with my wife, my solicitor and my barrister. There were two people from the Christian Brothers present, Brother Brian Brandon, as well as their solicitor. There was also a mediator. The Christian Brothers paid for my wife and my travel and accommodation.
13.I was aware at the mediation that I had no legal rights against the Christian Brothers, and that I could not have brought a court claim against them. I knew that I had given up my rights when I signed my 2009 Deed, and that the Christian Brothers did not have to pay me anything. I knew that my claim was also impossible because of the amount of time that had passed since I had been abused, and that there had been unsuccessful court claims against the Christian Brothers in the past.
14.I was presented with the Deed on 26 November 2014, late in the afternoon on the same day as the mediation. The mediation had started at about 10.00am and I was exhausted by the time it was presented to me. I didn't think the Christian Brothers' offer of $250,000 was fair. Everyone wanted to finish the mediation, including the mediator who told me I should be happy with the result. I signed the deed knowing that taking the Brothers to court was impossible.
On 26 November 2014 the plaintiff executed the Deed of Release. As in the 2009 Deed (see [39] above), the 2014 Deed defines the first defendant as the Body Corporate and the third defendant as the Institute. Recital D to the 2014 Deed stated that it has been agreed that 'further assistance' for the plaintiff had been agreed to be provided.
The deed included the following provisions:
2. Settlement
2.1In consideration of the Releasor's promises set out in this Deed, the Body Corporate and the Institute agree to pay the Releasor the settlement amount of $250,000 plus all costs and disbursements plus any payments owing to Medicare upon the production of a valid and correct Notice of Charge ('the agreed sum'). Costs agreed at $40,000 + GST. The parties acknowledge that no allowance was made for economic loss in the settlement sum.(handwritten)
2.2.1for and on behalf of the Body Corporate and the Institute;
2.2.2in full extinguishment of his rights against the Body Corporate and the Institute;
2.2.3subject to deduction of any amount so required pursuant to the provisions of the Health and Other Services (Compensation) Act 1995 (Cth) or any related legislation or any social services (Centrelink) legislation of the Commonwealth of Australia; and
2.2.4in full and final settlement of all loss and damage sustained by the Releasor as a result of the claims.
2.3The Institute will cause the payment of the agreed sum to be made to the Releasor within 28 days of the return of this Deed executed by the Releasor to the solicitors for the Body Corporate and the Institute or other nominated representative.
2.4The Releasor undertakes and agrees to pay out of the agreed sum any moneys repayable by the Releasor to any person or body whether in respect to social services, sick leave payments, make up pay, accident pay or any charges or moneys assessed under the Health & Other Services (Compensation) Act 1995 (Cth) and any social services (Centrelink) legislation of the Commonwealth of Australia and any other relevant legislation.
3. Release
3.1The Releasor for himself, his executors, administrators, dependants, heirs and assigns hereby releases and forever discharges the Body Corporate and the Institute from any claim, proceeding, action, cause of action or charge that he may have or may have had against the Body Corporate or the Institute with respect to the claims.
3.2The Releasor acknowledges having been informed of his right, and having been allowed reasonable time, to seek independent legal advice prior to his signing of this Deed of Release.
4. No liability and bar to further claims
4.1The Releasor acknowledges and agrees that:
4.1.1he will make no further claim for damages, expenses, treatment costs or compensation;
4.1.2nothing in this Deed constitutes an admission of liability by the Body Corporate or the Institute in respect of the claims;
4.1.3this Deed may be pleaded by the Body Corporate and the Institute as a bar to any claim, action, cause of action, charge or any other proceeding commenced against them or any other person;
arising out of or in connection with the acts, facts or circumstances constituted by the claims.
Consideration
The court's discretionary power created by s 92 is broad. The power is to be exercised if the court is satisfied it is just and reasonable to do so in all the circumstances. The other identified matters to be established in s 92(1) and s 92(2) are accepted by the defendants.
The plaintiff has the onus of establishing that it is just and reasonable in all the circumstances.
It is necessary to consider the parties' circumstances at the time the settlement agreement was entered into. This is for two reasons. First the amendments now provide that there is no statutory limitation period so that the application is not pushing up against all the rationales for statutory time limitations. Secondly, even if leave is granted to commence an action and liability is established, the court in awarding damages can take into account and deduct from the damages any amount paid under a settlement agreement, so that there is no disadvantage to a defendant by having made a payment under a settlement agreement: JAS [19] - [21].
The plaintiff's case is that he knew he had no legal rights against the Christian Brothers at the time of the 2014 Deed. He was exhausted by the time the offer was presented to him. It was a protracted, difficult and exhausting negotiation process.
The plaintiff's proposed action cannot be described as being without merit. It is his case that having been placed with the first defendant at a very young age, he was repeatedly abused.
The plaintiff's evidence is that he suffered from horrendous abuse. The descriptions contained in the plaintiff's affidavits support the submission made on his behalf that the plaintiff was subject to 'traumatic episodes of child sexual abuse'. In June 2014, the first defendant by its solicitors stated that it was 'accepted that WPM has suffered egregiously whilst in the care of the Brothers and that this is a very serious case'.
The quantum of the proposed claim is significant. As at April 2014 the plaintiff had said he would settle for $700,000. In November 2014 he executed a deed agreeing to accept $250,000. The settlement included no allowance for loss of earning capacity. The foreshadowed claim includes a claim for past loss of earning capacity inclusive of interest of $1,945,117. That sum has been calculated based upon the assumption the plaintiff could have but for the alleged abuse earned an amount commensurate with average weekly earnings. I am unable to make a precise determination as to the quantum of the claim in the event the plaintiff is successful as to liability should the leave sought be granted. Whilst I accept as submitted by senior counsel that each case depends upon its own circumstances, I note that in the decision of Lawrence vProvince Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27, Herron DCJ made an award of $400,000 by way of general damages and assessed loss of earning capacity in the sum of $620,000 in relation to a claim for historical sexual abuse. In assessing the claim for loss of earning capacity his Honour approached the matter on an assumption of a capacity to earn at least average weekly earnings. I take from Lawrence that that illustrates the potential scope of a claim the plaintiff could bring if granted leave, recognising of course that each case is dependent on its own facts.
The plaintiff's evidence as to loss of earning capacity is that he did have opportunities during his working life to be promoted. However because of his 'lack of education and fear of paperwork' he was prevented from taking up the opportunities.
As at the date of the 2014 Deed there was no legal basis upon which the plaintiff could seek an extension of the limitation period. The claim was statute barred. The plaintiff in his words knew that 'taking the Brothers to court was impossible'. Whilst Mr Harrison deposes that the limitation period was not discussed at the November 2014 mediation, there is evidence that the plaintiff was aware he could not successfully maintain a claim. In their letter of 25 June 2014 the defendants' solicitors had after stating the Christian Brothers wished to resolve the matter with an offer which is fair, just and reasonable stated that there has 'to be some reference points to the assessment of fair, just and reasonable compensation'. The writer notes 'the legal position in relation to such cases is well understood and has to be one of a number of issues on the table for consideration'. In that same letter there is reference to the existence of an earlier Deed of Release.
Apart from the limitation issues there was in 2014 a further legal impediment to the successful maintenance of a claim by the plaintiff. There was as noted the so‑called Ellis defence. Bringing proceedings against unincorporated associations such as the first defendant would have been futile. There simply was no capacity to maintain process against the unincorporated body and execution of any judgment obtained would have been problematic. The combination of the factors, namely the earlier deed, the time limitation and the legal status of the first defendant meant that the bargaining position of the parties at the November 2014 mediation was unequal. The defendants' position was far superior to that of the plaintiff as the defendants must have been well aware. About six months before Mr Harrison gave evidence to the Commission as to the difficulty arising from the Ellis issue. As I have said these matters formed part of the context.
The plaintiff did accept lump sums in 2009 and 2014. When the agreements were entered into his claims were clearly statute barred. I am prepared to accept that the negotiations in relation to the 2014 Deed were conducted in circumstances where the plaintiff was represented by counsel. However, notwithstanding Mr Harrison's evidence that the issue of the limitation period was not raised at the 2014 mediation, the plaintiff was clearly aware that there were legal problems with proceeding with his claim.
I have (at [29]) above summarised the reasons of the Chief Judge for granting leave and setting aside the deed in JAS. Those reasons apply equally in this case with the qualification that, in JAS, the application was unopposed.
In this case the application is opposed. The defendants' submission is that the 2014 Deed was the product of a fair and even process with all parties having access to suitable and competent advisers and reflects the strengths and weaknesses of the parties' respective positions without any reliance on the limitation period. Accordingly, it is submitted that the 2014 Deed cannot be said to be the product of unequal bargaining positions. Whilst I accept that the plaintiff was represented at the mediation, it is the case that his position was that he simply could not issue proceedings which had any reasonable prospects of success in the event a settlement was not effected. Being legally represented could not overcome the insurmountable legal barriers to a claim of which the plaintiff was acutely aware.
The plaintiff was left with no real choice but to accept whatever amount was offered at the 2014 mediation. There is no evidence that the defendant would not in any proceedings plead and rely upon the 2009 Deed as a bar, the expiry of the limitation period, or the difficulty of identification of a defendant, in the event an agreement was not reached at the mediation.
That the Limitation Act 2005 was not relied upon by the defendants at the mediation did not preclude the defendants from relying upon it in any subsequent proceedings. Furthermore, there is no evidence that the defendants informed the plaintiff it would not rely upon it if an agreement was not reached. It would have been a simple matter for the defendants at the mediation to inform the plaintiff that the defence would not do so. There is no evidence from the defendants that it had made the determination prior to the mediation that, if the matter did not settle, it would not rely upon the limitation defence in any proceedings.
I am satisfied that it is just and reasonable for leave as sought to be granted and for an order to be made setting aside the 2009 and 2014 Deeds. This will enable the plaintiff to pursue his proposed action in circumstances where the time bar, the identity of the defendant, and the prior settlement agreements are not barriers to a determination on the merits.
Conclusion
Accordingly, I make the following orders:
1.The plaintiff have leave to commence an action for damages for child sexual abuse suffered at Bindoon Farm School, such action to be against the current office holder pursuant to s 15B of the Civil Liability Act 2002.
2.The Deed of Settlement and Release dated on or around 17 September 2009 entered into between the plaintiff and:
(i)the first defendant; and
(ii)the second defendant;
be set aside to the extent such agreement would otherwise be a bar to such a cause of action.
3.The Deed of Release dated 26 November 2014 between the plaintiff and:
(i)the first defendant; and
(ii)the third defendant;
be set aside to the extent such agreement would otherwise be a bar to such a cause of action.
4.There be liberty to apply pursuant to s 92(3)(b) of the Limitation Act 2005 in relation to any other settlement agreement found to be in existence.
5.It is a condition of the leave granted in paragraph 1 of these orders that such leave is not to be a bar to the defendants making an application for any orders in the action pursuant to the reserved powers of the court referred to in s 6A of the Limitation Act 2005.
6.The costs of an incidental to this application be in the cause of the child abuse action.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to Judge Stavrianou21 AUGUST 2020
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