(a) this payment is not an admission of any legal liability on the part of the Christian Brothers in Australia, on the part of the Holy Spirit Province of the Christian Brothers (Western Australia and South Australia), or on the part of the Trustees of the Christian Brothers in WA Inc., or of The Christian Brothers Inc (SA), ('the Christian Brothers').

(b) this payment is not necessarily compensation for any injuries I may have received while a student at Castledare or for the consequences of any injuries I may have suffered while a student at Castledare.

(c) $2000 is the amount I would have received had I been successful in my attempt to participate in the legal action conducted on behalf of former students of the Christian Brothers by Slater & Gordon in the New South Wales Supreme Court 1993 - 1996, under the terms of the out of court settlement reached in August 1996 which brought an end to the legal action.

(d) the payment satisfies fully any claim I have against the Christian Brothers.

1. The applicant received a further payment of $100,000 from the Christian Brothers in 2015. A Deed of Settlement was signed by the claimant and dated 4 March 2015. The deed was between the claimant, the Trustees of the Christian Brothers (ABN 64066939786) and Brother Peter Bernard Clinch. It contained the following provisions:

1.1.1 he was in the care of the Christian Brothers at Castledare and Clontarf Boys Homes ("the orphanages") between 1962 and 1968;

1.1.2 during his time at the orphanages he was unlawfully assaulted or otherwise subjected to maltreatment by various Christian Brothers and further alleges that as a result of such unlawful acts he has sustained loss, damage and injuries and he may require specialist counselling and/or other therapy ("the claims"). Particulars are more fully set forth in the following:

1. Letter from Kelso Lawyers to the Christian Brothers Oceania Province dated 12 September 2014;
2. Statement of the Releasor dated 10 November 2014;

1. Report of Dr Jonathan Phillips dated 10 December 2014;

1. Handwritten statement of the Releaser undated;
2. Letter from Kelso Lawyers to Carroll and O'Dea Lawyers dated 12 January 2015.

1.1.3 all loss, damage and injuries alleged to have occurred whilst in the care of the Christian Brothers have arisen out of the allegations in the claims; and

1.1.4 the loss, damage and injuries were caused or contributed to by the Body Corporate and/or the Institute.

2.1 In consideration of the Releasor's promises set out in this Deed, the Body Corporate and the Institute agree to pay the Releasor the settlement amount of $100,000.00 inclusive of costs and disbursements ("the agreed sum") plus the sum of $5,400.00 payable to Dr Jonathan Phillips in accordance with the invoice to Kelso Lawyers dated 10 December 2014.

2.2 The Releasor acknowledges that the agreed sum is paid:

2.2.1 for and on behalf of the Body Corporate and the Institute;

2.2.2 in full extinguishment of his rights against the Body Corporate and the Institute;

2.2.3 subject to deduction of any amount so required pursuant to the provisions of the Health and Other Services (Compensation) Act 1995 (Cth) or any related legislation or any social services (Centrelink) legislation of the Commonwealth of Australia; and

2.2.4 in full and final settlement of all loss and damage sustained by the Releasor as a result of the claims.

2.3 The Institute will cause the payment of the agreed sum to be made to the Releasor within 28 days of the return of this Deed executed by the Releasor to the solicitors for the Body Corporate and the Institute or other nominated representative.

2.4 The Releasor undertakes and agrees to pay out of the agreed sum any moneys repayable by the Releasor to any person or body whether in respect to social services, sick leave payments, make up pay, accident pay or any charges or moneys assessed under the Health & Other Services (Compensation) Act 1995 (Cth) and any social services (Centrelink) legislation of the Commonwealth of Australia and any other relevant legislation.

3.1 The Releasor for himself, his executors, administrators, dependants, heirs and assigns hereby releases and forever discharges the Body Corporate and the Institute from any claim, proceeding, action, cause of action or charge that he may have or may have had against the Body Corporate or the Institute with respect to the claims.

3.2 The Releasor acknowledges having been informed of his right, and having been allowed reasonable time, to seek independent legal advice prior to his signing of this Deed of Release.

4.1.1 he will make no further claim for damages, expenses, treatment costs or compensation;

4.1.2 nothing in this Deed constitutes an admission of liability by the Body Corporate or the Institute in respect of the claims;

4.1.3 this Deed may be pleaded by the Body Corporate and the Institute as a bar to any claim, action, cause of action, charge or any other proceeding commenced against them or any other person;

arising out of or in connection with the acts, facts or circumstances constituted by the claims.

1. The application before the courts seeks the following orders:
   1. The applicant have leave to commence an action for damages for child sexual abuse suffered at Castledare Junior Orphanage and St Vincent's Orphanage Clontarf.
   2. The Deed of Release entered into between the applicant and Trustees of the Christian Brothers and Brother Peter Bernard Clinch, dated 4 March 2015, be set aside.
   3. The costs of and incidental to this application be in the cause of the child abuse action.
2. The applicant did not seek any orders in relation to setting aside the terms of any settlement agreement reached in about 1998 when a payment of $2,000 was made by the Christian Brothers to the applicant, presumably because any discharge letter signed by the applicant is not available and therefore the terms of the settlement cannot be confirmed.

1. I make the following findings:
   1. The applicant entered into a settlement agreement dated 4 March 2015.
   2. The settlement agreement related to a child sexual abuse cause of action as defined in the Act (it is not disputed by the respondents that the settlement agreement related wholly or in part to a child sexual abuse cause of action).
   3. At the time the settlement agreement was entered into the child sexual abuse cause of action relied upon by the claimant was statute barred.
   4. The District Court of Western Australia has jurisdiction to deal with the proposed action.[5] This is acknowledged by the respondents.
2. The remaining issue is whether it is just and reasonable for an order to be made giving leave to the applicant to commence an action claiming damages for personal injuries suffered as result of alleged child sexual abuse and to the extent necessary for that, to set aside the settlement agreement dated 4 March 2015.
3. The expression 'just and reasonable' is not defined in the legislation and nor does the legislation set any criteria that the court must consider.
4. The expression 'just and reasonable' has been used in legislation in other jurisdictions giving a discretion to courts to extend a period of statutory limitation. From cases in this context I believe the following broad principles are applicable to the expression 'just and reasonable' in s 92 (of the Act).
5. The power to give leave in circumstances where it is 'just and reasonable to do so' is a broad power: Gilmore v Quittner [2011] NSWSC 809 [182].
6. The applicant for leave has the onus of establishing that the circumstances of his or her case demonstrate that it is just and reasonable that leave should be granted. Each case involves an evaluative judgement of the relevant facts and circumstances. What is just and reasonable must clearly depend on circumstances of each case: Gilmore v Quittner [191].
7. Although authorities on making an application to extend a time limitation suggest that the court must focus its attention on the question of whether there is indeed evidence to establish the applicant's cause of action[6], in my opinion in relation to an application under s 92 of the Act, the focus more appropriately is on the circumstances of the parties at the time the settlement agreement was entered into. There are a number of reasons for this:

(a) The amendments to the Act now provide that there is no statutory limitation so that the application is not pushing up against all the rationales for statutory time limitations.[7]

(b) Even if leave is granted to commence an action and the liability is established, the court in awarding damages can take into account and deduct from the damages any amount paid under a settlement agreement, so that the respondent is not disadvantaged by having made a previous payment under a settlement agreement.[8]

1. However, in an appropriate case I do not exclude the possibility that an argument on the part of a respondent that the applicant cannot succeed at trial or is unlikely to receive more than already paid pursuant to a settlement agreement may be relevant. This has not been argued in this case. I reserve my position in relation to this issue.
2. The parties have also sought a ruling from the court as to whether it is a relevant consideration as to whether the respondents can receive a fair trial given such factors as delay. However, the respondents have not produced any evidence of prejudice by delay or otherwise. Nor has any argument been put forward by the respondents that they cannot receive a fair trial. In the absence of evidence of prejudice, it is not in my view appropriate to express an opinion on this issue. Identifying the relevant principles is best left to a case where there is a genuine dispute on the issue.
3. In deciding what emphasis should be given in deciding the question of whether in a particular case it is 'just and reasonable' to give leave to commence an action, I believe assistance can be gained by considering the legislative context in which s 92 of the Act was introduced.[9] Also under common law principles of statutory interpretation, it is relevant to consider the mischief intended[10] to be remedied by the introduction of s 92 and the other provisions of the amending Act.
4. The explanatory memorandum to the amending Act stated as follows:

Part 3 of the Bill sets out the amendments to the Limitation Act 2005 (WA) to remove limitation periods for all child sexual abuse actions, both retrospectively and prospectively. This implements recommendations 85 - 86 and 88 of the Royal Commission[11] Report. Without removal of these timeframes, the Royal Commission found that survivors, who typically do not report their abuse for long periods after the Limitation period has expired, would be unable to have their claims of child sexual abuse determined by a court on the merits.

Part 3 also aims to remedy some of the past injustice caused by the operation of strict time limitation periods to child sexual abuse actions by providing for the setting aside of previously barred and previously settled causes of action under certain conditions.

1. In my opinion, the evaluative judgment to be made under s 92 as to whether it is 'just and reasonable' should take into account these remedial principles which are obviously intended by the amendments to the Act.
2. In this matter I am satisfied that it is just and reasonable to grant leave for the applicant to commence an action against the respondents for the following reasons:
   1. As a general rule there is no statutory limitation period for such claim.
   2. At the time of the applicant entered into the settlement agreement of the 4 March 2015 his claim under existing law was statute barred. This meant that his bargaining position was severely curtailed and he was left with no real choice but to accept whatever amount was offered by the Christian Brothers without it being necessarily a reflection of his proper entitlement if he was successful in an action against the Christian Brothers.
   3. The extent of the entitlement of the applicant if he was successful on such a cause of action has never been decided on its merits.
   4. If leave is given then the court dealing with the action may, if it is satisfied that is just and reasonable to do so, take into account any amount paid under a settlement agreement to the extent that it relates to the child sexual abuse the subject of the cause of action[12]. Accordingly, the respondent is not likely to be financially disadvantaged by having made the payment under the settlement agreement.
   5. Granting leave to commence an action is consistent with the broad intention of the amending Act to remove legal barriers to claimants commencing an action and having their claims decided on their merits.
   6. The respondent does not oppose the application.
3. Accordingly, I make the following orders:
   1. The applicant have leave to commence an action for damages for child sexual abuse suffered at Castledare Junior Orphanage and St Vincent's Orphanage Clontarf. Such action to be against the current officeholders pursuant to s 15B of the Civil Liability Act 2002.
   2. The Deed of Release entered into between the applicant and Trustees of the Christian Brothers and Brother Peter Bernard Clinch, dated 4 March 2015, be set aside to the extent such agreement would otherwise be a bar to a cause of action.
   3. The costs of and incidental to this application be in the cause of the child abuse action.
4. Although no orders were made or sought in relation to the payment of $2,000 made in about 1998, I will give liberty to apply for orders relating to this payment and the agreement reached at the time between the applicant and the Christian Brothers to the extent it is necessary to set aside an impediment to the applicant proceeding with a child sexual abuse action.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Section 30 of the Limitation Act 2005.

[2] Section 31 of the Limitation Act 2005.

[3] Section 91 (1) (a) of the Limitation Act 2005 (WA).

[4] Section 91 and 92 of the Limitation Act 2005 (WA).

[5] Section 50(2) of the District Court of Western Australia Act 1969.

[7] See by way of comparison McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 [551].

[8] Section 92(6) of the Limitation Act.

[9] Section 19 of the Interpretation Act 1934 (WA).

[10] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 381, 408.

[11] Royal Commission into the Institutional Responses to Child Sexual Abuse.

[12] Section 92(6) of the Limitation Act 2005 (WA).