Application to set aside settlement agreements and leave to commence an action for child sex abuse granted Application to set aside settlement agreements and leave to commence an action for child sex abuse granted

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Application to set aside settlement agreements and leave to commence an action for child sex abuse granted

4 September 2020 | Public & Product Liability

TRIGGER WARNING: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.

The plaintiff was subject to sexual, physical and mental abuse between 1954 and 1961 whilst he was living at the Bindoon Farm School and under the care of the Christian Brothers in Western Australia. The plaintiff 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 Issue

  • Whether it is ‘just and reasonable’ to give leave to commence the proposed action and to set aside the deeds of settlement.

The background

The plaintiff is aged 75 having been born on 24 July 1945, He was placed in an orphanage at age five. When he was about nine years of age, he was sent to Australia under a child migration programme. Upon arrival, he was taken to the Bindoon Farm School run by the Trustees of the Christian Brothers, where he lived for several years. The plaintiff alleged that he was abused at Bindoon between 1954 and 1961. The plaintiff’s proposed causes of action became time barred many years ago.

In 2009 and 2014, the plaintiff entered into settlement agreements relating to claims for damages for the abuse. The plaintiff received a total of $404,254.98 in relation to claims for 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. Relevantly, 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.

Pursuant to s 92 of the Limitation Act, the plaintiff sought leave to commence an action for damages for sexual, physical and mental abuse and to set aside the 2009 and 2014 settlement agreements. The Defendants did not oppose the setting aside of the 2009 settlement, but they did oppose the setting aside of the 2014 settlement. They argued that the 2014 settlement was the product of a fair and even process with all parties having access to suitable and competent advisers and that the 2014 settlement could not be said to be the product of unequal bargaining positions.

The decision at trial

There is no definition of the expression ‘just and reasonable’ in the Limitation Act. His Honour Stavrianou DCJ considered the parties’ circumstances at the time the settlement agreement was entered into as well as Chief Judge Sleight’s reasons in JAS v The Trustees of The Christian Brothers [2018] WADC 169. In JAS the settlement agreement was set aside and the plaintiff was granted leave to commence a proposed cause of action. Chief Judge Sleight noted the criteria to be satisfied for the application were:

  • The plaintiff has entered into a settlement agreement;
  • The settlement agreement relates to a child sex abuse cause of action;
  • That at the time the settlement agreement was entered into the child sex abuse cause of action was statute barred;
  • The application is made to a court that would have jurisdiction to deal with such an action; and
  • The court is satisfied that it is ‘just and reasonable’ to grant leave to commence a proposed cause of action on a previously settled cause of action and set aside the settlement agreement.

His Honour Stavrianou DCJ agreed with Chief Judge Sleight’s reasons in JAS, stating they should apply equally in this case. His Honour noted 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 as the claim was statute barred. The plaintiff in his words knew that 'taking the Brothers to court was impossible' and there was evidence that the plaintiff was aware he could not successfully maintain a claim. His Honour believed the plaintiff was left with no real choice but to accept whatever amount was offered at the 2014 mediation. His Honour stated there was no evidence that in the event an agreement was not reached at the mediation, 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.

His Honour Stavrianou DCJ found that the plaintiff 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.

Implications for you

As a result of the abolition of limitation periods, victims of historical sexual abuse can seek leave to commence an action for historical sexual abuse if previous settlement agreements are set aside under s 92 of the Limitation Act.

A settlement agreement containing clauses relating to pleading the settlement agreement as a bar to proceedings or releasing defendants from liability will not prevent the Court from setting a settlement agreement aside.

WPM v Trustees of the Christian Brothers [2020] WADC 112

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Thalia Kailis

Thalia Kailis

Associate