High Court refuses special leave application in set aside deed claim

Case Note: TRG v The Board of Trustees of the Brisbane Grammar School [2020] QCA 190 (7 September 2020)

 

Facts

  • Applicant attended Brisbane Grammar School as a student from 1986 – 1989
  • Kevin Lynch (school counsellor) sexually assaulted the applicant on numerous occasions in 1986 and 1987
  • Applicant sued the respondent from damages for personal injuries (including psychiatric and psychological damage) suffered as a result of the abuse
  • The proceedings were settled by written agreement and the applicant was paid a sum of money
  • The applicant provided a statement to the Royal Commission and gave evidence in hearings of the Commission
  • In December 2015, solicitors wrote to Mr Stack (respondent solicitor) advising that the applicant had given evidence at the Royal Commission and that he was still suffering the effects of Lynch’s abuse of him.
  • Respondent’s solicitor responded that it was prepared to consider ongoing counselling/treatment and requested further information re applicant’s treatment
  • No response was received from applicant’s solicitor
  • In 2018 – this application was filed in the Court
 Application The applicant applies for an order setting aside the settlement agreement so that he can commence fresh proceedings against the respondent for damages upon causes of action arising from Lynch’s assaults

Issues

Whether the applicant can establish that it is “just and reasonable” to set aside the settlement agreement (S 48 of the Transitional provision for Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 providing:“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”)

Decision

  •  The settlement was the product of fair, arms-length negotiations between two parties on equal footing, both appropriately represented
  • The settlement figure of $47,000.00 was a fair settlement reflecting the factual and legal strengths and weaknesses of the parties’ respective cases properly assessed at that time by them. The discount of the applicant’s claim was not materially contributed to by any consideration of limitation defences 

Relevant Considerations

Prospects of success in any claim

  • A court may easily conclude that the respondent placed Lynch in a position vis-à-vis the applicant and other students which provided the opportunity and the occasion for Lynch to commit the criminal acts that he apparently did
  • The applicant in any new proceedings, would have strong prospects of attributing to the respondent vicarious liability for the sexual assaults and damage inflicted upon him by Lynch

The quantum of any claim brought now

  • I accept that the likely award of damages to the applicant will well exceed the figure calculated in 2002 …given the evidence which can be given as to economic loss and given the latest comparable cases relevant to general damages

Reasonableness of mediation

  • I have not seen anything in the material before me which could form the basis of any legitimate criticism of the respondent, its representatives,  or its legal advisors, in their conduct in handling the issues raised by Lynch’s criminal actions once those matters emerged in the year 2000

Reasonableness of settlement figure

  • There is nothing to suggest that the settlement figure of $47,000 was not a fair and reasonable reflection of the applicant’s case as it appeared in 2002. It was the product of an arm’s length bargain facilitated through a fair mediation process where the applicant was very ably represented
  • The applicant’s claim was a relatively modest one (on his own barristers’ advice) which faced difficulties and where there were pressures on both sides. A fair negotiation process settled on a figure of $47,000 and I find that was a reasonable settlement

Impact of Delay

  • Application was made 16 years after the date the proceedings settled & 30 years after the sexual assaults - Necessary to consider the impact of delay
  • Legitimate lines of injury by the respondent on these issues would be with friends, associates and teachers who knew the applicant and observed him at the School. By 2001 the investigations would be difficult. Now they are likely impossible. To that extent the respondent is prejudiced in the defence of any new proceedings

Loss of Insurance

  • The only finding that can be made on the evidence in its present state is that there must be some unquantifiable risk that the respondent will be without effective insurance cover in relation to any new proceedings

Costs

  • The fact that the respondent paid its own costs of the 2001 proceedings (as those costs relate to the applicant) and paid the applicant’s party party costs of $12,000.00
  • “The fact that costs were incurred and paid by a defendant in the earlier proceedings is a relevant consideration which as a matter of degree, may or may not influence the exercise of discretion”

Conclusion

Application dismissed - Court found that it is not just and reasonable to set aside the settlement agreement.

 

Many survivors and their advocates are calling on the Queensland Government to clarify the meaning of “just and reasonable” in these set aside deed cases.

In stark contrast, the Victorian Supreme Court in the matter of WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639 had no difficulty in finding the prior deed of an abuse survivor should be set aside. Justice Keogh said:

The circumstances in which the settlement agreement was created and the consequences for each party would always be relevant but may not be the controlling factor; There is no additional onus for there to be “compelling” reasons to set aside a deed, there is merely a positive burden on the Plaintiff to demonstrate that setting the deed aside is just and reasonable; Change in legislation and other circumstances that have arisen since the settlement may be relevant; If the previous settlement reflected legal barriers which have now been removed, it may be just and reasonable to set aside the settlement in order to allow the Plaintiff to seek adequate compensation.

It is noteworthy that one other factor that applied in the WCB case which was not present in the TRG case was that at the time of WCB’s prior settlement, there was no entity that he could sue because the Church relied on the “Ellis defence”. Otherwise it could be said that the factors that were present in the TRG case were also present in the WCB case with quite a different outcome for the survivor.

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