Abuse Law – Case Law Update – Application to set aside agreement – PDL -v- XYZ (a pseudonym) [2023] WADC 96

In the recent matter of PDL -v- XYZ (a pseudonym) [2023] WADC 96, the plaintiff, PDL (a pseudonym), filed an application against the defendant, XYZ (a pseudonym), seeking orders to set aside a previous settlement agreement made on or about 31 October 1996 and seeking leave to commence an action for child sexual abuse cause of action, submitting that it was just and reasonable to do so. The defendant opposes the grant of leave to commence an action and the setting aside of the 1996 settlement agreement.

The sexual abuse is alleged to have been committed by a priest, Father LL, to have occurred between 1965 when the plaintiff was about 9 years of age and continued until about 1972 at which time the plaintiff was 16 years of age. The sexual abuse is said to have first occurred at [redacted] when the plaintiff had gone to stay with Father LL who was then the parish priest. The abuse is also said to have continued at [redacted] later at the parish of [redacted] where the plaintiff also stayed with Father LL. The defendant’s liability is said to arise pursuant to the defendant being the relevant officer holder whose office owed a legal duty to take reasonable care in its recruitment, training, supervision and oversight of priests so as to avoid harm or injury to the plaintiff, a child, and the breach of that duty. The plaintiff’s proposed causes of action became time barred many years ago, most probably by the early 1980s at the latest.

In 1996 the plaintiff entered into a settlement agreement evidenced by an unsigned unwritten document which relates to claims for compensation for abuse and which effected releases from liability in favour of the defendant.

In 2018, amendments were made to the Limitation Act 2005 (WA) and the Civil Liability Act 2002 (WA) by the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA). Those amendments enabled claims for damages for historical sexual abuse to proceed and also included provisions removing time limitations and enabling the setting aside of settlement agreements in relation to claims for sexual abuse. Relevantly, section 92 of the Limitation Act 2005 (WA) states that a court may, if satisfied it is just and reasonable to do so, set aside a settlement agreement in relation to a previously settled cause of action. The issue in this case is whether it is ‘just and reasonable’ to give leave to commence the proposed action and set aside the 1996 deed.

On 18 August 2023, the District Court of Western Australia was satisfied that it is just and reasonable for leave to be granted and for an order to be made setting aside the 1996 agreement. At [89], it provides that the Court ordered:

1. The applicant have leave to commence an action for damages for child sexual abuse by Father LL at the parishes of [redacted] between in or about 1965 and 1972.

2. The settlement agreement entered into on or about 31 October 1996 between the applicant and the respondent be set aside to the extent such agreement would otherwise be a bar to any such cause of action.

3. There be liberty to apply pursuant to s 92(3)(b) of the Limitation Act 2005 in relation to any other settlement agreement found to be in existence.

4. It is a condition of the leave granted in subparagraph 1 of these orders that such leave is not to be a bar to the respondent making an application for any orders in the action pursuant to the reserve powers of the court referred to in s 6A of the Limitation Act 2005.

5. The costs of and incidental to this application be in the cause of the child abuse action to be commenced.

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today.

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.

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