Abuse Law – Case Law Update – Setting aside previous settlement agreements.

In the matter of DZY (a pseudonym) v Trustees of the Christian Brothers [2023] VSC 124, the plaintiff commenced court proceedings in negligence and vicarious liability against the Trustees of the Christian Brothers (“the Christian Brothers”), seeking damages for the injury, loss and damages, including economic loss, as a result of alleged abuse suffered by the plaintiff whilst he was a student at St Alipius Boys School in Ballarat.

The Christian Brothers filed a defence in this proceeding in which they do not admit the abuse occurred, however, do admit that one of the two alleged perpetrators, Brother Best, was criminally convicted of one count of indecent assault in 2017 in relation to the plaintiff in these proceedings. Furthermore, the Christian Brothers relied on the terms of two previous settlement agreements as a bar to the plaintiff’s current proceeding.

The plaintiff filed an application pursuant to the Limitation of Actions Act 1958 (Vic) to set aside the two previous settlement agreements to the extent that they are a bar to his current proceeding.

At the hearing on 28 February 2023, the Christian Brothers submitted that the Court should set aside only part of the settlement agreements which would allow the plaintiff to continue his current proceeding but not his claim for economic loss. The plaintiff submitted that the Court should set aside the whole of the previous settlement agreements so that he can continue the totality of his current proceeding, including his claim for economic loss.

The Christian Brothers submitted that the plaintiff’s previous instructions to his then lawyers not to pursue an economic loss claim was motivated by his desire to avoid the possibility of having to pay a refund to Centrelink out of his settlement monies, demonstrating that his desire not to pursue an economic loss claim previously was not due to either the limitations period issue or the difficulty in nominating a viable defendant.