By Stuart Unwin
The Supreme Court of Queensland has made its first decision under legislation granting courts the discretion to set aside settlement agreements in historical abuse cases. Claims will not be re-opened just because of favourable changes in the law since the time of the settlement.
Since March 2017, limitation periods have been abolished in Queensland in respect of claims for personal injury caused by sexual abuse when a claimant was a child.
Courts have also been given the power to set aside associated settlement agreements when ‘it is just and reasonable to do so’ (LIMITATION OF ACTIONS ACT 1974 – SECT 48).
On 21 June 2019, in TRG v The Board of Trustees of the Brisbane Grammar School, the Supreme Court of Queensland refused an application to set aside a settlement agreement reached in 2002.
The case involved sexual abuse the Claimant suffered at high school between 1986 and 1987.
The Court concluded it would not be appropriate to set aside a settlement agreement merely because the law of vicarious liability had changed in a way which was favourable to the Claimant.
The Court accepted that, if allowed to proceed, the Claimant would achieve a higher damages award than that reflected in the 2002 settlement.
In deciding not to set aside the settlement, the Court considered the following matters:
- The Respondent had paid its own costs as well as the Claimant’s costs of the 2001 proceedings.
- The Claimant had been represented by experienced solicitors and Counsel.
- There had been a mediation with an experienced mediator, who had exercised control over the mediation process.
- The settlement was the product of fair, arms-length negotiations between two parties on an equal footing, both appropriately represented.
- The settlement figure was a fair settlement reflecting the factual and legal strengths and weaknesses of the parties’ cases properly assessed at the time.
- The claim was not significantly discounted by any consideration of limitation defences.
Implications of decision for Institutions
The Supreme Court of Queensland has signalled that a balanced approach will be taken when considering applications to set aside settlements in historical abuse matters.
In the TRG case, efforts by the School and its solicitors in 2002 to implement a fair process, has resulted in a finding that the settlement should remain final.
Future applications to the Courts may focus on settlements achieved where the resolution process was informal or where the claimant was not as comprehensively advised.
Before resolving historical abuse matters, institutions should consider what policies, processes and checks they have in place to increase the prospects that settlements will remain final. In complex cases, individuals should be given time to consider offers and encouraged to obtain appropriate legal advice. The process, as well as the result, should be documented and the documents retained electronically.
Institutions facing requests to re-open settlements should not assume that a decision to set aside a past agreement is inevitable. The background of the settlement should be reviewed. A decision can then be made to:
- Maintain the settlement;
- Treat the settlement as one fact to be addressed in the new claim procedure; or
- Treat the settlement as relevant only to the quantum.
If you would like to discuss the defence of historical abuse claims or your processes and procedures for managing them, please contact Stuart Unwin at BTLawyers on (07) 3211 2233. Alternatively, please fill out the contact form below.