Young v Waller Legal & Ors (Preliminary Questions)
[2025] VSC 522
•29 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST
S ECI 2023 01221
BETWEEN:
| GEORGIA-ROSE YOUNG (as personal representative of the estate of Paul Shanahan, deceased) | Plaintiff |
| and | |
| WALLER LEGAL PTY LTD | First Defendant |
| and | |
| KNOWMORE LEGAL SERVICE LIMITED | Second Defendant |
| and | |
| TRUSTEES OF THE CHRISTIAN BROTHERS | Third Defendant |
---
JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2025 |
DATE OF RULING: | 29 August 2025 |
CASE MAY BE CITED AS: | Young v Waller Legal & Ors (Preliminary Questions) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 522 (First Revision 2 September 2025) |
---
PROFESSIONAL LIABILITY – Institutional liability – Allegations of sexual abuse – Plaintiff settled claim against third defendant – Plaintiff later applied for redress under National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) – Plaintiff alleges consequently precluded from seeking leave under Wrongs Act 1958 (Vic) to bring, and bringing, further claim against third defendant – Plaintiff alleges applied as a result of negligence of second defendant lawyer – Second defendant alleges plaintiff not so precluded - Preliminary questions – Whether plaintiff precluded by National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) from seeking leave under Wrongs Act 1958 (Vic) to bring, and bringing, further claim against third defendant – Whether necessary to prove so precluded on balance of probabilities in claim for damages for loss of a chance - Validity of offer and acceptance of redress – Whether failure to specify ‘nil’ monetary component rendered offer not in accordance with legislative requirements – Whether accepting one component of redress but not another meant offer of redress was not accepted – Whether second defendant mounting impermissible collateral attack on validity of offer of redress – Need to prove loss of chance on balance of probabilities - Offer of redress validly made and accepted – Third defendant released and discharged from civil liability for alleged abuse – No impermissible collateral attack – Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 – Talacko v Talacko (2021) 272 CLR 478 – Administrative Decisions (Judicial Review) Act 1977 (Cth) sch 1(zg) – National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) ss 16, 29, 30, 31, 39 42, 43 – Limitation of Actions Act 1958 (Vic) ss 27QA, 27QB, 27QD – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Andrew Ingram KC and Mr Peter Haddad | Arnold Thomas & Becker Lawyers |
| For the First Defendant | Mr Ben House | Landers & Rogers |
| For the Second Defendant | Mr Ben Petrie | K&L Gates |
| For the Third Defendant | Mr Sam Hay KC and Ms Alice Wharldall | Carroll & O’Dea Lawyers |
TABLE OF CONTENTS
A. Background and the preliminary questions............................................................................ 1
B. Question A: Is the plaintiff precluded from attempting to bring another claim against the Christian Brothers?...................................................................................................................... 3
B.1Overview................................................................................................................................. 3
B.2The legislation........................................................................................................................ 5
B.3The purported offer and acceptance................................................................................... 7
B.4Was the offer an offer ‘in accordance with’ the National Redress Scheme Act?........ 10
B.5Does it matter that the plaintiff accepted only one component?.................................. 11
B.6Conclusion on Question A................................................................................................. 12
C. Question B: Is the plaintiff precluded from making an application under s 27QD of the Limitation of Actions Act 1958?............................................................................................... 12
D. Question C: Estoppel................................................................................................................ 13
E. Other arguments......................................................................................................................... 13
E.1That it is not necessary to answer Question A................................................................ 13
E.2Knowmore Legal is mounting an impermissible ‘collateral attack’............................ 14
F. Disposition................................................................................................................................... 17
HIS HONOUR:
A. Background and the preliminary questions
These reasons concern the answers to three questions that have been ordered pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 to be determined as preliminary points and which arise in the following circumstances.
Paul Shanahan, now deceased, the plaintiff, said that he was abused by Brother Whitten and John Coogan while he was a student at St Joseph’s College in Newtown in the 1970s. St Joseph’s was run by the Trustees for the Christian Brothers (‘the Christian Brothers’), the third defendant. In 2015, he engaged Waller Legal Pty Ltd (‘Waller Legal’), the first defendant, as his solicitors in a claim against the Christian Brothers. In April 2017, he settled that claim for $175,000 inclusive of costs. In mid-2019, Mr Shanahan engaged Knowmore Legal Service Ltd (‘Knowmore Legal’), the second defendant, in relation to an application under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (‘the National Redress Scheme Act’, or ‘the Act’). A claim was made under that Scheme. Mr Shanahan was offered some counselling and a ‘direct personal response’, but no further monetary compensation. On 17 February 2021, Mr Shanahan signed a document indicating that he accepted the offer of counselling but did not wish to receive a direct personal response.
Mr Shanahan believed that he received inadequate compensation. Section 27QA of the Limitation of Actions Act 1958, were it to apply, would have allowed Mr Shanahan bring a second action against the Christian Brothers notwithstanding the previous settlement, were he able to persuade the Court under s 27QB of the Limitation of Actions Act 1958 to have the 2017 settlement set aside. Section 27QA(3)(b), however, says that s 27QA does not apply to any ‘accepted offer of redress under’ the National Redress Scheme.
Mr Shanahan commenced this proceeding in negligence against Waller Legal and Knowmore Legal. His case against Knowmore Legal was that had Knowmore Legal provided proper advice, he would not have participated in the National Redress Scheme (or perhaps would not have accepted the offer he received) but would instead have sought to avail himself of the process provided for in the Limitation of Actions Act 1958 whereby he could attempt to seek further damages from the Christian Brothers. The damages that are or will be sought against Knowmore Legal are then to be assessed by reference to the value of the loss of that opportunity.[1]
[1]The plaintiff’s claim against Knowmore Legal has not been fully pleaded, in that although the fifth further amended statement of claim pleads breaches of duty by Knowmore Legal, it does not in terms allege the causative connection between those breaches and his loss. But the way the case is put is sufficiently clear from the way the negligence is alleged and the oral evidence given by Mr Shanahan in his de benne esse and was confirmed by counsel in the course of argument.
It follows that Mr Shanahan’s claim proceeds on the basis that his participation in the National Redress Scheme meant that he was thereafter unable to apply to the Court to have the 2017 settlement set aside and then to commence a fresh proceeding against the Christian Brothers. In its defence, Knowmore Legal contends that on a proper construction of the National Redress Scheme Act and the relevant communications, Mr Shanahan’s participation in the National Redress Scheme did not in fact prevent him from applying to the Court to have the 2017 settlement set aside and then to commence a fresh proceeding against the Christian Brothers. One issue that arises in this proceeding, then, is whether this is so.
The first two questions to be determined are:
A.Whether, by force of s 43 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth):
a.the deceased has released and forever discharged the third defendant, their associates and officials, from civil liability for abuse of the deceased that is within the scope of the scheme; and
b.the deceased cannot bring or continue civil proceedings against the third defendant, their associates and officials in relation to that abuse; and
c.the third defendant, their associates and officials are released and forever discharged from any liability to make a contribution to any damages payable to the deceased as provided in s 43(d) of that Act.[2]
B.Whether, by reason of s 27QA(3)(b) of the Limitation of Actions Act 1958 (Vic), the plaintiff cannot make an application under s 27QD of the Limitation of Actions Act 1958 (Vic).
[2]The question contains a lengthy definition of the phrase ‘third defendant, their associates and officials’, which it is not necessary to reproduce.
The Christian Brothers, who clearly have an interest in the outcome, have been added as the third defendant.
Mr Shanahan, or his personal representative on behalf of his estate (and I will hereafter refer simply to either of them as the plaintiff) also contends that the Christian Brothers are estopped from presenting this argument.[3] On the assurance of counsel for the plaintiff that this argument could be determined without the calling of oral evidence and on the basis of the same written material that would be considered in answering the above two questions,[4] the Court in due course ordered that the following question also be determined as a preliminary point:
C. By virtue of the doctrines of estoppel by convention and consideration and/or contractual estoppel, is the second defendant precluded from pleading that the deceased failed to litigate (sic) his loss or failing to make application pursuant to s.27QD of the Limitation of Actions Act 1958 (Vic) for the Deed of Release entered into between the deceased and the Trustees of the Christian Brothers and Brother Peter Clinch to be set aside pursuant to s.27QE of that Act.
B. Question A: Is the plaintiff precluded from attempting to bring another claim against the Christian Brothers?
B.1 Overview
[3]As I understand it, such an estoppel has been referred to in a proposed reply, but no such reply has yet in fact been served.
[4]See my ruling, delivered orally, on 13 December 2024.
Section 43 of the National Redress Scheme Act provides that a person ‘releases and discharges’ the persons and institutions said to have abused that person if that person ‘accepts an offer of redress in accordance with section 42’ of that Act. Further, s 27QA(3)(a) of the Limitation of Actions Act 1958 provides, as noted above, that that section does not apply to any ‘accepted offer of redress under the National Redress Scheme’.[5]
[5]If the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 operates to create a legislatively-mandated release and discharge of the Christian Brothers, then the Limitation of Actions Act 1958 could not allow the revival of an action by the plaintiff against them. This is because the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 is a Commonwealth Act and the Limitation of Actions Act 1958 is a State Act, under where there is a conflict between the two the Commonwealth Act prevails: Constitution, s 109.
Accordingly, the central question is whether, within the terms of the National Redress Scheme Act, the plaintiff has accepted an offer of redress in accordance with s 42 of that Act. I observe that the words of the National Redress Scheme Act might be better expressed as ‘accepts in accordance with s 42 an offer of redress’, instead of ‘accepts an offer of redress in accordance with section 42’, because s 42 of the National Redress Scheme Act deals with the acceptance of offers, rather than the making of them.
Knowmore Legal’s main arguments, in summary, were that the plaintiff did not accept an offer of redress in accordance with s 42 of the Act because:
(a) The document provided to him was not an ‘offer of redress’ because it did not specify the amount of the redress payment and so did not comply with the requirements of s 39 of the National Redress Scheme Act, which is headed: ‘Offers of redress’; and
(b) It follows that the document the plaintiff provided accepting the document sent to him was not an acceptance of an ‘offer of redress’;
(c) Alternatively, by accepting only one component of the two forms of redress offered, the plaintiff was not accepting the offer as made.
If there is in the legislation something that an ‘offer’ must or must not contain, together with a statutory intention that that thing’s wrongful inclusion or exclusion renders the offer other than an offer ‘in accordance with’ the legislation, then Knowmore Legal’s argument will succeed. Accordingly, an analysis of the terms of the legislation and terms of the offer is required.
The National Redress Scheme Act was amended by the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021, the relevant parts of which commenced operation on 13 September 2021. The offer or purported offer under consideration here was made on 30 October 2020 and accepted on 1 March 2021. Further, and although the amendments made some changes to the relevant wording, no party suggested that the changes would lead to a different interpretation. For both those reasons, the analysis below refers to the National Redress Scheme Act as it was prior to the amendments.
B.2 The legislation
There are three types of redress potentially available under the National Redress Scheme Act: a ‘redress payment’ of up to $150,000; a ‘counselling and psychological component’ that may include access to counselling and psychological services provided under the scheme or a payment of up to $5,000 to enable access to counselling outside the scheme; and a ‘direct personal response’ from the institutions determined to be responsible for the abuse.[6]
[6]National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) s 16.
The process by which a claimant may obtain redress is set out in the legislation:
(a) First, the claimant makes an ‘application’ in the ‘approved form’ to the ‘Operator’ of the scheme.[7] An ‘approved form’ is a form approved by the Operator, rather than a form contained in a schedule to the Act or in regulations promulgated under the Act;[8]
[7]Ibid s 19. The Operator is the Secretary of ‘the Department’: s 9. Under s 19A of the Acts Interpretation Act 1901 (Cth), a reference to ‘the Department’ is a reference to ‘the Department of State of the Commonwealth that is administered by the Minister or Ministers administering that provision in relation to the relevant matter and that deals with that matter’, being the Department of Social Services.
[8]Ibid s 188.
(b) Next, and putting to one side provisions relating to the investigatory process, under s 29 the Operator must make a ‘determination to approve, or not to approve, the application’.[9] Unlike the situation with a claim at common law where the abuse and damage must be proved on the balance of probabilities, the Operator ‘must’ determine to approve an application if there is ‘a reasonable likelihood that the person is eligible for redress’;[10]
[9]Ibid s 29.
[10]Ibid s 29(2)(a).
(c) If an application is approved, under s 29 the Operator must then determine:
(i) ‘in accordance with section 30’, ‘the amount of the redress payment for the person’.[11] In determining the amount of a redress payment, the Operator is required, by s 30, among other things, to deduct from the maximum amount of $150,000 the amount of a ‘relevant prior payment’, which must be indexed by 9% per annum.[12] Section 30(3) provides that (and the emphasis has been added):
[11]Ibid s 29.
[12]Ibid s 30.
The Operator must then work out the amount of redress payment for the person by adding together the amounts of each responsible institution’s share of the costs of the redress payment. The amount may be nil, but it must not exceed the maximum amount of the redress payment.
Note 1.The amount may be nil because the total amount of relevant prior payments that were paid to the person by the responsible institutions exceeds the maximum amount of the redress payment that could be payable to the person. However, even though the person may not be paid any redress payment in that case, the person will still be entitled to the other components of redress under the scheme (i.e. the counselling and psychological component and a direct personal response).
(ii) ‘in accordance with s 31’, ‘the amount of the counselling and psychological component of redress for the person’ and whether it should be provided as provision of that service or as provision of a counselling and psychological payment.[13]
[13]Ibid s 29(c), (d), (e).
Although not strictly relevant to the issue currently before me, I note that the Operator must also determine which institutions are responsible or are not responsible to make redress and their ‘share’ in the costs of each component;
(d) Next, and again only if the application is approved, under s 39 the Operator ‘must give the person a written offer of redress’. Section 39 relevantly provides as follows (and the emphasis has been added):
If the Operator approves a person’s application for redress, the Operator must give the person a written offer of redress that:
(a) explains the 3 components of redress (i.e. redress payment, access to the counselling and psychological component of redress for the person, and direct personal response); and
(b) specifies the amount of the redress payment; and
(c) specifies whether the counselling and psychological component of redress for the person consists of:
(i) access to the counselling and psychological services that are provided under the scheme; or
(ii) the counselling and psychological services payment; and
...
(e) Next, under s 42, an applicant ‘may accept an offer of redress by complying with’ that section. It provides that (and the emphasis is in the original):
(1) A person may accept an offer of redress by complying with this section.
(2) The person must give the Operator a document (the acceptance document) that:
(a) is in the approved form; and
(b) states that the person accepts the offer; and
(c) states that the person releases and forever discharges each of the following institutions and officials (a released institution or official) from all civil liability for abuse of the person that is within the scope of the scheme:
...
(f)states the components of redress that the person wishes to receive; and
...
(f) Then, as noted above, under s 43:
If a person accepts an offer of redress in accordance with section 42, then, at the time the person gives the acceptance and by force of this section:
(a) the person releases and forever discharges every released institution or official from civil liability for abuse of the person that is within the scope of the scheme; and
(b)the person cannot … bring or continue civil proceedings against a released institution or official in relation to that abuse; and
...
(d)if a released institution … would, apart from this section, be liable to make a contribution to another institution or person in relation to damages payable to the person in civil proceedings brought or continued by the person … against the other institution or person in relation to that abuse, then:
(i)the released institution … is released and forever discharged from liability to make that contribution; and
…
B.3 The purported offer and acceptance
As emerges from the above, and unlike an application and acceptance, an offer of redress does not have to be in any particular form, but it does have to meet the requirements of s 39 set out above. The offer, or purported offer, dated 30 October 2020, included the following:
Dear Mr Shanahan,
Your offer of redress
Thank you for making this application. On behalf of the National Redress Scheme I acknowledge that the sexual abuse you experienced as a child was wrong and should not have happened to you.
...
.... I have carefully looked at the information provided and found the Trustees of the Christian Brothers responsible for your abuse and for your redress under the National Redress Scheme. I have approved your application and used the Assessment Framework to make the offer set out below.
Your offer of redress is:
·access to counselling and psychological services in Victoria
·access to a direct personal response on behalf of the Trustees of the Christian Brothers
You can accept one or both components of redress.
...
When you have decided please let us know if you:
·accept or decline this offer, or
·want to request a review of this offer.
The following pages have information on how your offer of redress has been made, including the reasons for the determination and how you can accept, decline or request a review.
...
The letter then continued, on a new page after the signature block, and partly repetitively, as follows (and the underlining has been added):
Information about the determination
...
To make a determination on your application I have:· taken into account the information provided by you ...
· determined that there is a reasonable likelihood that you meet the eligibility requirements set out in the Act, and
· used the Assessment Framework to work out the amount of your redress payment that recognises:
othe kind of sexual abuse you experienced
othe impact of the abuse you experienced
...
Your offer of redress
I have approved your application and determined that you are eligible for redress for the sexual abuse you experienced.
Your offer of redress is:
· access to counselling and psychological services in Victoria
· access to a direct personal response on behalf of the Trustees of the Christian Brothers
You can accept one or both components of redress.
...
In making this determination, I am required to take into account the relevant prior payment of $175,000 you received as part of your settlement with the Trustees of the Christian Brothers on 16 June 2017. Of this amount, I have identified $142,380.40 to be the relevant portion. When applying indexation to this amount, the full relevant prior payment is $150,651.26.
As the relevant prior payment I am required to consider is greater than the amount for which I could find you eligible for redress, I am unable to include a monetary component your redress offer.
If you would like further information about how your address payment was determined you can contact the National Redress Scheme on….
...
How to accept this offer
If you decide to accept this offer, you need to complete and sign the Acceptance Document included with this letter.
...What happens if you accept this offer
If you decide to accept the offer of redress:
1.Release of Responsible Institution: You will release the Trustees of the Christian Brothers ... from civil liability (other than the person who abused you) ...
...
How to decline this offer
You do not have to accept this offer. To decline your offer you can write to the Scheme. If you write to us, you should state that you are not accepting this offer of redress….You may also decline the offer by taking no action. If the Scheme does not hear from you by 24 April 2021 the offer will be considered to be declined.
...
There was included with this correspondence a form headed ‘Acceptance Document’. The relevant part of this form stated (emphasis in original):
Acceptance of offer
I have received an offer of redress and I accept that offer.
I wish to accept the following components of my offer. I understand that I cannot change my mind about accepting or declining these components after agreeing to this document.
Mark the box next to each component that you DO wish to accept (you have 6 months to respond). Please keep in mind that even if you do accept the Direct Personal Response and/or counselling now you do not have to take up these components later on if you decide not to.
□ Access to counselling and psychological services delivered by the State of Victoria
□ A direct personal response on behalf of the Trustees of the Christian Brothers
On 1 March 2021, the plaintiff, through his solicitors, returned the completed and signed ‘acceptance of offer’ form. He had put a cross in the box indicating that he wished to accept the ‘access to counselling’ component of the offer, but had not put a cross in the box alongside the ‘direct personal response’ component.
B.4 Was the offer an offer ‘in accordance with’ the National Redress Scheme Act?
Knowmore Legal submitted that:
(a) When regard is had to the fact that s 39, reproduced in para 15(d) above, has outlined in detail the information that must be included in any offer and that the recipients of the offers will be victims of abuse who will often have significant psychiatric illnesses, the legislative intention must be that the offer precisely accord with the requirements of that section and that any failure to do so means that the offer is not an offer ‘in accordance with’ that section; and
(b) The requirement contained in s 39(b) that the offer ‘specifies the amount of the redress payment’ means that if no redress payment is being offered, the offer must include words to the effect that an offer of ‘$Nil’ was being made or otherwise and more generally, that the purported offer did not ‘specify’ the amount of the redress payment.
Knowmore Legal also submitted that the legislation is intended to benefit victims of child sexual abuse and so that any ambiguity in its interpretation should be resolved in favour of the victims.
I accept that for an offer to be an offer made in accordance with s 39 of the Act, it must ‘specify’ the amount of a redress payment. But that does not mean that where an offer does not include any redress payment the offer is required to be expressed in terms that an offer was being made of $Nil. By giving the explanation it has in the underlined passages reproduced in para 17 above, the Operator has sufficiently ‘specified’ the amount of the redress payment, that is, that there is no redress payment included in the offer. There is no reason to read the legislation as mandating that the offer be expressed in the way Knowmore Legal submits. Unlike with the application and acceptances, there is no standardised form required to be used, and so just as there is no mandated form of words required to constitute the explanation required by s 39(a), there is no mandated form of words required to constitute the ‘specification’ that no redress payment is being offered required by s 39(b).
I hold to this conclusion even if the legislation is to be read, in the case of ambiguity, in favour of the applicant for redress.[14] To my mind, the position is clear. And I do not accept that expressing the offer as an offer of $Nil would be any clearer or more comprehensible to an applicant than the way the offer was expressed, and indeed making an offer of $Nil could be less clear.
[14]I need not consider the issues that arise where legislation is intended to both benefit one group of persons, such as claimants for child sexual abuse, but also to benefit institutions by providing them with releases in the event that they participate in the scheme and makes offers of redress, as is the case with, at least, s 43 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth).
I should note that there is no allegation that the plaintiff in this case was misled or misunderstood the nature of the offer that he was accepting.
B.5 Does it matter that the plaintiff accepted only one component?
It is true that often in contract law, a party is unable to accept only part of an offer and that an attempt to do so amounts instead to a counter-offer. But the situation is different if the offer anticipates or allows the offeree to accept some parts of the offer and to reject others. That is the case here, as clearly emerges from s 42(2)(f) of the Act as set out in para 15(e) above and s 16(2) of the Act which provides that:
A person who is entitled to redress under the scheme may choose to accept 1, 2 or all 3 of those components of redress.
In this way, the statute anticipates that there be an offer of redress, which may include different components, and a single ‘acceptance’ that identifies the components of the redress that the person ‘wishes to receive’. The legislation makes it clear that there is a single offer and a single acceptance and accordingly that an acceptance that specifies that only a subset of the components are sought to be received is nonetheless an ‘acceptance’ of the offer.
Further, the plaintiff’s ‘acceptance’ could not properly be considered instead as a counter-offer, because he was not introducing a new term.[15] If the plaintiff were properly to be seen as making a counter-offer rather than accepting an offer, that would then require that counter-offer to be accepted before any contractual consequences arose. Probably, the acceptance form should state that the claimant wishes to ‘receive’ certain components, rather than that the claimant wishes to ‘accept’ certain components (see the correspondence set out in paras 16 to 18 above), but that loose language does not alter the fundamental characterisation of the communications. The offer, properly understood, was an offer to the plaintiff to provide access to counselling or a direct personal response or both, at the plaintiff’s election. The plaintiff accepted that offer, and in doing so, and in accordance with what the offer anticipated and allowed, elected to receive access to counselling but not to receive a direct personal response.
B.6 Conclusion on Question A
[15]Cf, eg, Turner v Kempson & Co Pty Ltd v Gamm [1922] VLR 498.
For these reasons, the plaintiff accepted an ‘offer of redress’ for the purpose of s 43 of the Act, and by so doing enlivened the releases and discharges set out in that section. Accordingly, the answer to each part of Question A is: ‘Yes’.
C. Question B: Is the plaintiff precluded from making an application under s 27QD of the Limitation of Actions Act 1958?
As noted above, s 27QD(2) of the Limitation of Actions Act 1958 where it applies allows a person to bring an action on a previously settled cause of action, but s 27QD(3)(a) provides that s 27QD does not apply to an accepted offer of redress under the National Redress Act. The parties accepted that the answer to this question depended on the answer given to Question A.
As I have decided that the plaintiff has accepted an offer of redress under the National Redress Act, the answer to Question B is: ‘Yes.
D. Question C: Estoppel
As noted above, Question C was ordered on the assurance that it could be answered by reference to the written documents and would not require oral evidence. I anticipated that the argument would be, in effect, that because Knowmore Legal had advised (or represented to) the plaintiff that if he accepted the offer of redress he would lose all his common law rights, Knowmore Legal were estopped from now asserting that, having accepted the offer of redress, the plaintiff had not in fact lost all his common law rights.
At the hearing, counsel for the plaintiff conceded that to establish the estoppel he would have to establish that the plaintiff relied on those representations and that he had suffered detriment as a result, which could not be established on the basis of the written material. In any event, if the answers to Questions A and B are ‘Yes’, then there is no need to answer Question C.
For the above reasons, the answer to Question C will be: ‘Not necessary to determine’.
E. Other arguments
E.1 That it is not necessary to answer Question A
Knowmore Legal argued that it was not necessary for me definitively to answer Question A. Knowmore Legal referred to a passage from the judgment of the High Court in Talacko v Talacko[16] that ‘the existence of a loss is sufficiently shown by proving that the tort caused a permanent impairment of the value of the plaintiff’s existing right’.[17] It argued, as I understood it, that prior to the allegedly negligent advice the plaintiff had an ‘existing right’ to seek to recover further damages from the Christian Brothers, and that any damages would have to be assessed having regard to the chance, or prospects, that the plaintiff’s correspondence constituted an acceptance of an offer and thus released the Christian Brothers and so caused a permanent impairment in the value of his right. For that reason, an answer on the balance of probabilities was of little utility.
[16](2021) 272 CLR 478.
[17]Ibid, 496.
I disagree. The plaintiff must establish, on the balance of probabilities, that he has lost an opportunity that he would have sought to exploit. Weighted probabilistic reasoning is then engaged in in order to quantify the value of that lost opportunity, but weighted probabilistic reasoning is not engaged in in order to determine whether the opportunity has been lost; to recover damages against Knowmore Legal, the plaintiff must establish on the balance of probabilities that by reason of its negligence he has lost the opportunity (he would have exploited) to apply to have his 2017 settlement set aside and, if this could be done, to commence another proceeding against the Christian Brothers.[18] If he has not lost that opportunity, then he has suffered no relevant loss. The passages relied on in Talacko v Talacko do not lead to a different conclusion. The Court there then used as an example a cause of action against a solicitor for negligently failing to commence proceedings before the expiration of a limitation period. It was not suggested that in such a case, the claimant did not have to prove on the balance of probabilities that the limitation period has expired. Certainly, there is nothing in Talacko v Talacko that indicate that it was intending to overturn the principles summarised in Sellars v Adelaide Petroleum NL.[19]
E.2 Knowmore Legal is mounting an impermissible ‘collateral attack’.
[18]See, eg, Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 355 (Mason CJ, Dawon, Toohey and Gaudron JJ), 364, 368 (Brennan J); Price Higgins & Fidge v Drysdale [1996] 1 VR 346, 354 (Winneke P).
[19](1994) 179 CLR 332.
A ‘collateral attack’ is an attack on an administrative act or decision in proceedings the primary object of which is not the setting aside of that act or decision.[20] One purpose of limiting a ‘collateral attack’ would be to require a person instead to initiate proceedings for judicial review (if available). This would, at least, ensure that time-limits or other procedural processes or restrictions required in a judicial review proceeding were not evaded,[21] and that the decision maker is potentially able to defend the decision.[22] It may also, however, potentially result in unnecessary legal proceedings and add to the cost and delays involved in legal processes. It may also, however, result in unnecessary and fragmented legal proceedings and add to the cost and delays involved in legal processes.
[20]Ousley v The Queen (1997) 192 CLR 69, 98-99 (McHugh J).
[21]See, eg: Ivan Hare KC, Catherine Donnelly SC and Joanna Bell, De Smith’s Judicial Review (Thomson Reuters, 9th ed, 2023) 177 [3-124] as the ‘much criticised’ decision of O’Reilly v Mackman [1983] 2 AC 237, and Director of Housing v Sudi [2011] 33 VR 559, 589 [225]-231] (Weinberg JA).
[22]I note that in Australia many decision-makers might in any event adopt the neutral role considered appropriate in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
The Christian Brothers argued that Knowmore Legal should not be permitted to argue that the offer of redress was not an offer made in accordance with the National Redress Scheme Act because:
(a) Knowmore Legal would not have standing to have the offer of redress reviewed under public law principles;
(b) In any event, decisions under the National Redress Scheme Act are exempt from judicial review under the Administrative Decisions (Judicial Review Act) 1977;[23] and
(c) The maker of the offer, the Operator, was not a party to this proceeding.
[23]Administrative Decisions (Judicial Review) Act 1977 (Cth) sch 1(zg), inserted by the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Act 2018 (Cth) sch 3.
In the absence of some statutory prohibition, the source of the power to restrict collateral attacks on administrative decisions must be the Court’s power to prevent an abuse of its process. The principal authority relied on by the Christian Brothers was Jacobs v OneSteel Manufacturing Pty Ltd.[24] That case considered whether the Workers Compensation Tribunal in South Australia had the power to determine the validity of its own Rules that imposed limitations on the amount of counsel’s fees recoverable on a taxation when determining a dispute as to what costs should be ordered. The Court determined that the Tribunal did have that power. Besanko J, with whom Duggan, Vanstone and Layton JJ agreed, set out in Jacobs v OneSteel Manufacturing Pty Ltd six principles:[25]
[24](2006) 93 SASR 568.
[25]Ibid, [93] (Besanko J, Duggan, Vanstone and Layton JJ agreeing).
1.Are the grounds of challenge likely to involve the adducing of substantial evidence?;
2.If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?;
3. In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?;
4. Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?;
5. Is the issue raised by the collateral challenge clearly answered by authority?;
6. Are there other cases pending which raise the same issue?; …
Given my finding that the offer was made in accordance with the National Redress Scheme Act, it is not necessary for me to decide this issue. However, in my view Knowmore Legal was entitled to present the contrary argument in this case. No authorities were identified that have prevented a ‘collateral attack’ in analogous circumstances to those under consideration here. Knowmore Legal was not seeking to have the offer set aside or declared to be unlawful in a broader sense that would have directly disrupted the relationship between the Scheme and the plaintiff or affected the plaintiff’s entitlements under the Scheme. It was instead presenting an argument as to the legal consequences, as they affected it, of the exchange of communications between the plaintiff and the Operator. The fact that the legislature has excluded decisions made under the National Redress Scheme Act from review under the Administrative Decisions (Judicial Review) Act 1977 may be understood as being designed to prevent claimants from using that Act to challenge the amount of the offers of redress made, rather than preventing a party in Knowmore Legal’s position from presenting arguments in defence of a claim in negligence against it as to the legal consequences of its actions. Further, the argument could be determined merely by looking at the documents.[26] Given that the plaintiff has sued Knowmore Legal and as part of his cause of action he must prove that its negligence led to his losing his opportunity of seeking to recover further damages from the Christian Brothers, it must be the case that Knowmore Legal is entitled to challenge the proposition that the plaintiff has lost his opportunity of seeking to recover further damages from the Christian Brothers other than by seeking to establish in some other proceeding that the offer of redress was not made in accordance with the legislation. Relatedly, if Knowmore Legal were prevented from presenting that argument in a judicial review proceeding because it did not have standing to do so, that would tend against preventing it from presenting that argument in this proceeding. Adopting the words of Besanko J in Jacobs v OneSteel Manufacturing Pty Ltd,[27] there are ‘good reasons’ to allow in this case an argument as to the legal consequences of the exchange of documents between the plaintiff and the Operator of the Redress Scheme. There is no flavour, to my mind, of any abuse of process by Knowmore Legal in presenting the argument it has, albeit that I have found the argument unpersuasive.
F. Disposition
[26]It may be that the situation is different if a collateral attack requires the Court to go beyond an analysis of the documents, as to which see, eg: Murphy v The Queen (1989) 167 CLR 94, 105-106 (Mason CJ and Toohey J); Ousey v The Queen (1997) 192 CLR 69, 79-80 (Toohey J), 87 (Gaudron J), 102 (McHugh J), 125-127 (Gummow J), 151 (Kirby J); and Director of Housing v Sudi [2011] 33 VR 559, 589 [231], 604 [261] (Weinberg JA).
[27](2006) 93 SASR 568 [93] (Duggan, Vanstone and Layton JJ agreeing).
I will make orders answering all parts of Questions A ‘Yes’, Question B ‘Yes’, and Question C ‘Not necessary to determine’.
I will hear the parties on:
(a) Whether an order should now be made removing the Christian Brothers as third defendant; and
(b) The question of costs.
1
4
0