TRG v The Board of Trustees of the Brisbane Grammar School

This significant case is the first intermediate appellate consideration of s 48(5A) of the Limitation of Actions Act 1974, which grants the Court a discretion to set aside a settlement agreement relating to a civil claim arising from alleged child sexual abuse. Notably, Fraser JA considered the content of the discretion and the weight which should be given to the fact a limitation period affected the decision to enter into, or the quantum of, a settlement agreement.

Fraser and Morrison and Mullins JJA

7 September 2020

The appellant was a student at Brisbane Grammar School from 1986 to 1989. [2]. He alleges that he was sexually assaulted by the school counsellor, Kevin Lynch, during that time. [2]. Along with a number of other former students, the appellant commenced legal proceedings against the school in 2001. [3]. The following year, the students engaged in a mediation with the school. [5]. While the appellant’s claim did not settle at the mediation, he ultimately settled the claim with the school in December 2002 for $47,000 plus costs. [6]. His claim was discontinued the following year. [6].

Following the Royal Commission into Institutional Responses to Child Sexual Abuse’s interim report in 2015, Queensland amended the Limitation of Actions Act 1974 to add ss 11A and 48 which removed the limitation periods for personal injury claims resulting from the sexual abuse of a person when that person was a child. [7]–[9]. Relevantly, s 48(5A) provides that: 

“(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.”

The appellant made an application under s 48(5A) for his settlement agreement from 2002 to be set aside. [11]. The learned primary judge found that it was not just and equitable to make such an order, and dismissed the application. [12]. 

Fraser JA, with whom Morrison and Mullins JJA agreed, first dealt with a ground of appeal which contended that the “dominant legislative purpose” of s 48(5A) “is the provision of the ‘means to re-open cases’ where settlement of such cases was influenced or affected by the inherent unfairness of limitation periods barring actions involving child sexual abuse”. [17]. 

Fraser JA considered that the suggested legislative purpose underlying the amendments as a whole is a relevant consideration. [18]. However, ss 48(3) and 48(5A) deal specifically where “the parties’ rights and obligations in relation to the claimed right of action have been replaced by rights and obligations under the judgment or settlement”. [18]. It is clear on the face of ss 48(3) and 48(5A) that they empower a court to make retrospective orders to extinguish parties’ rights and obligations “in cases which the court decides that it is just and reasonable to set aside the judgment or the settlement”. [19], [23], [26].

In this context, Fraser JA found that if the expiry of a limitation period influenced a person’s decision to settle, or the quantum of the settlement, that would result in an unfairness which should be taken into account as a factor in favour of setting aside the settlement agreement. [27]. However, the statutory text considered in its context “does not justify the claimed implication that, regardless of the kind or degree of influence of expiry of the limitation period upon the settlement, the fact that there was such an influence necessarily must be given greater weight than any factor favouring refusal of the claimed order”. [28]. Rather, such an order can only be made after taking into account the interests of both parties to the settlement in deciding whether it is just and equitable to set it aside, with “the relative significance or weight to be given to the material factors in that exercise depending upon a judicial assessment of the particular circumstances of each case”. [28]. His Honour found that this construction was not altered by s 48(5C), which provides for some amelioration for a respondent where a settlement is set aside. [30].

Notably, Fraser JA also found, contrary to the appellant’s submissions, that the operation of s 48(5A) was not limited to cases where the limitation period affected the decision to enter into, or the quantum of, the settlement agreement. [29]. This was because s 48(5A) “does not express the different condition that the settlement was influenced adversely to the applicant by the expiry of the limitation period”. [29]. Indeed, his Honour contrasted the language of s 48(5A) with that of s 48(3), which limits the court’s power to reconsider a judgment to judgments which had been given on the ground that the limitation period had expired. [29]. While it is unlikely that the discretion would be exercised where the limitation period did not affect the settlement negotiations, his Honour considered that the discretion was formally limited to such cases. [29].

Accordingly, his Honour rejected this ground of appeal. [31].

The appellant also sought to argue that the primary judge erred in “finding that the limitation issue did not materially affect the quantum of the settlement and was not a material factor in that settlement”. [32]. However, Fraser JA found that there was no evidence that the limitation issue affected either party’s decision-making in the settlement negotiations in 2002. [36]–[38]. 

As there was no oral evidence, Fraser JA considered that the Court of Appeal was in as good a position as the primary judge to decide on the proper inferences which could be drawn from the evidence at hand. [39]. After considering the evidence and the history of the matter, Fraser JA concluded that the primary judge did not err in making that finding. [73].

In the event, the appeal was dismissed with costs. [74].

M Paterson