Setting aside Prior Deeds of Settlement in Child Sexual Abuse Claims
In Australia, various states have implemented legislation or about to, that could help hundreds of victims of historical institutional child sexual and physical abuse allowing them to overturn previous deeds of release which prevented them from taking further legal action, in exchange for small amounts of compensation from the institution.
The new pieces of legislation introduced in the last five or so years in Australia, allow courts to overturn old deeds/settlements that had prevented new legal action if it is deemed to be unfair, thus allowing the victim to seek real justice.
Western Australia
In 2020, the District Court allowed for the first time the setting aside of a previous deed. In WPM v Trustees of the Christian Brothers [2020] WADC 112, the court heard that WPM was subject to sexual, physical, and mental abuse between 1954 and 1961 whilst he was living at the Bindoon Farm School which was managed at the time by the Christian Brothers. WPM sought leave pursuant to s 92 of the Limitation Act 2005 (WA) to commence an action for damages and to set aside settlement agreements entered into in relation to the alleged abuse.
In 2018, amendments were made to the Limitation Act 2005 (WA) and the Civil Liability Act 2002 (WA) to enable claims for damages for historical sexual abuse to proceed. The amendments included provisions removing time limitations and enabling the setting aside of settlement agreements in relation to claims for sexual abuse. More specifically, s 92 of the Limitation Act 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.
WPM in 2009 and 2014, had entered into settlement agreements with the Christian Brothers relating to claims for damages for the abuse. Consequently, WPM received a total of $404,254.98 in relation to both agreements/deeds he had signed. At the time of signing the 2014 deed, the Court found that there was no legal basis upon which the plaintiff could seek an extension of the limitation period as the claim was statute barred. WPM knew that taking the Brothers to court was impossible and there was evidence that WPM was aware he could not successfully maintain a claim.
The Court therefore heard that WPM was left with no real choice but to accept whatever amount was offered in the 2014 settlement and that it was ‘just and reasonable’ for leave to be granted and for an order to be made setting aside the 2009 and 2014 settlements. Accordingly, the court granted the plaintiff’s application.
Queensland
Unfortunately, no previous deeds have been set aside so far by a Court of law in Queensland. However, the provisions are there to do so if a Court finds it has been unfair in its outcome. Section 11A of the Limitations of Actions Act 1974 (Qld) now provides for the following:
“(1) An action for damages relating to the personal injury of a person resulting from the sexual abuse of the person when the person was a child—
(a) may be brought at any time; and
(b) is not subject to a limitation period under an Act or law or rule of law.”
Section 48 of the Queensland Limitations Act was amended to also include the following:
“(5A) An action may be brought on a previously settled right of action if a court, by order on application, sets aside the agreement effecting the settlement on the grounds it is just and reasonable to do so.”
Victoria
In 2020, the Supreme Court set aside a deed of settlement between the plaintiff, known as WCB, and the Catholic Church for historical child abuse - WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639 (30 September 2020). The plaintiff, in this case, was a former altar boy who was abused by Father Daniel Hourigan (now deceased) in Gippsland from 1977 to 1980. The plaintiff at the time was aged between 11 and 14. WCB brought a claim against the Bishop of the Catholic Diocese of Sale for compensation for the post-traumatic stress he suffered as a result. The claim was settled for $32,500 in 1996 and a deed of settlement was signed between both parties.
WCB’s matter was the first case decided after amendments in 2019 to the Limitation of Actions Act 1958 (Vic) which allowed courts under s 27QD to set aside previous settlements if it was ‘just and reasonable’ to do so. Furthermore, the case was brought forward in relation to amendments also to the Limitation of Actions Act 1958 (Vic) in 2015 which removed actions for historical child sexual abuse from being time barred, and The Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) which makes it easier to sue a representative defendant in such claims.
The court found that the settlement sum of $32,500 represented a significant discount on what WCB might otherwise have expected to recover had he been able to sue a proper representative defendant and not been faced with defences that the limitation period for his claim had expired and concerning the Bishop’s liability for the conduct of the priest.
New South Wales
In NSW, there has also been recent developments in relation to setting aside past deeds/agreements dealing with historic institutional sexual abuse claims. The Civil Liability Amendment (Child Abuse) Bill 2001 was introduced to the NSW Legislative Assembly on 17 March 2021 and was passed on 9 November 2021, amending certain sections of the Civil Liability Act 2002 (NSW). From the 18 November 2021, courts in NSW may set aside settled claims for child abuse where it is considered “just and reasonable to do so” and to ensure that damages for child abuse are not restricted. In deciding to set aside a past deed/agreement based on just and reasonable grounds, the Court will consider the following factors:
1. the amount paid to the applicant under the agreement;
2. the bargaining position of the parties to the agreement;
3. the conduct regarding the agreement of;
a) the parties other than the applicant, or
b) The legal representative of the parties other than the applicant; and
4. Any other matter the Court considers relevant.
The new amendment will only apply to child abuse claims as defined under that legislation. Furthermore, it will involve not just sexual abuse claims, but also claims involving serious physical abuse, or any other abuse (connected abuse) perpetrated against a person who was under 18 years of age at the time of the abuse. However, it should be noted that the new amendments will not allow a Court of law to set aside a National Redress Scheme deed of release, or an agreement under which one defendant indemnifies another.
Tasmania
In 2020, Tasmania also implemented new amendments to the Limitations Act 1974 (Tas) allowing a Court of law to set aside previous judgements. Under s 5C(2), a Court may do so on the grounds that it is in the interest of justice to do so. However, in order for a Court to do so, it will take into account the following under s 5C(3):
(a) the amount of the agreement;
(b) the relative strengths of the bargaining positions of the parties;
(c) any conduct, by or on behalf of the organisation to which the agreement relates, that –
(i) relates to the cause of action;
(ii) occurred before the settlement was made; and
(iii) the court considers to have been oppressive.
Furthermore, prior deeds of settlement must have been made between the expiration of the limitation period and July 2018.
South Australia
On the 23 August 2021, the South Australian State Parliament introduced the Civil Liability (Institutional Child Abuse Liability) Amendment Bill 2021 (SA) to amend the Civil Liability Act 1936 (SA). The Bill was passed in 2022 and came into force in August 2022 , allowing a Court in South Australia pursuant to Part 7B to set aside an affected agreement if it is just and reasonable to do so. Like other legislation in other states, a Court under s 50W(3)(b) will take into account the following in deciding to whether set aside an agreement:
(i) whether negotiations were affected by an imbalance of power;
(ii) whether the applicant was legally represented; and
(iii) whether the defendant (or other parties) engaged in unfair or oppressive conduct.