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TRG v The Board of Trustees of the Brisbane Grammar School  
Unreported Citation: [2019] QSC 157
EDITOR'S NOTE

This case is the first decision to consider s 48(5A) of the Limitation of Actions Act 1974, which allows the Court to set aside settlement agreements in respect of civil proceedings concerning child sexual abuse. While Davis J ultimately refused to set aside the settlement, his Honour’s judgment contains extensive discussion of the relevant principles.

Davis J

21 June 2019

Facts

The respondent operates Brisbane Grammar School (“the School”). [1]. The applicant was a student at the School between 1986 and 1989. [1]. Kevin Lynch (“Lynch”), who was employed at the School as a counsellor, sexually assaulted the applicant on numerous occasions in 1986 and 1987. [2]. In mid2000, allegations began to emerge that Lynch had sexually offended against students of the School while he was employed there. [13]. The applicant sued the respondent in 2001 for damages for personal injuries suffered as a result of the abuse (“the 2001 proceedings”). [3]. The 2001 proceedings were settled in 2002 by written agreement, and the applicant was paid a sum of money. [3].

Legislation

Part 2 of the Limitation of Actions Act 1974 (“the Act”) prescribes limitation periods which apply to different classes of action. Section 11 prescribes a limitation period of three years for personal injuries actions. The Act was amended in 2016, in response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse, by the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (“the Amending Act”).

Two amendments are relevant. First, the Amending Act inserted s 11A. It provides that 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 may be brought at any time and is not subject to any limitation period. Second, the Amending Act inserted s 48, which is a transitional provision. Section 48(5A) provides:

“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.”

But for the amendments made by the Amending Act, any cause of action which the applicant had against the respondent had become statute barred before the revelations about Lynch in 2000. [82].

Issue in present case

The applicant applied to the Supreme Court pursuant to s 48(5A) of the Act for an order setting aside the settlement agreement so that he might commence fresh proceedings against the respondent for damages upon causes of action arising from Lynch’s assaults. [4]. There was no dispute that the applicant’s cause of action fell within s 48(5A). [86]. The only issue for Davis J was whether it was “just and reasonable” to set aside the settlement agreement. [86].

Determination

His Honour began by observing that the Act does not strike down settlement agreements, that the onus is upon an applicant for an order under s 48(5A) to establish that it is “just and reasonable” to set aside the settlement agreement, and that whether that test is satisfied must be assessed as at the date of the application. [132]–[134]. His Honour also noted that the power under s 48(5A) is a discretionary power, and that the identification of considerations relevant to the exercise of a judicial discretion is a matter of statutory interpretation. [140], [143].

Davis J held that the statutory purpose of s 48(5A) is to strike a balance between two competing interests: (i) the interest of the respondent in maintaining the settlement and avoiding the costs and uncertainty of further litigation; and (ii) the interest of the applicant in commencing a new claim where the result may be more favourable than the settlement. [153]–[154]. His Honour rejected a submission that there is a presumption that settlements entered into in actions commenced after the expiry of a limitation period are prima facie subject to being set aside. [156].

His Honour noted that the term “just and reasonable” is of “wide import”. [156]. He held that the term recognises that in determining which interest should prevail many factors may be relevant. [156]. His Honour noted that those factors include the circumstance that there is now no limitation period applicable to claims arising from child sexual abuse and the circumstance that settlements may have been entered into which are unfair. [156]. What is intended is that a balance be struck between the two competing interests – that balance is struck as “what is ‘just and reasonable’”. [156].

In determining the present application, his Honour had regard to the following factors:

  • the prospects of success in any claim; [161]–[187]
  • the quantum of any new claim brought; [188]–[195]
  • the effect of the Act on the quantum of the settlement; [196]–[233]
  • the reasonableness of the mediation process; [234]–[239]
  • the reasonableness or otherwise of the settlement figure; [240]–[246]
  • the impact of delay; [247]–[256]
  • costs thrown away; [257]–[260]
  • loss of insurance; [261]–[262]
  • the change in the law; and [263]–[265]
  • an offer by the School of “ongoing counselling”. [266]–[271].
  • an offer by the School of “ongoing counselling”. [266]–[271].

In the result, Davis J found that it would not be just and reasonable to set aside the settlement, and therefore dismissed the application. [280]–[281].

M J Hafeez-Baig