Plaintiff v Defendant

1 The plaintiff commenced proceedings by writ and statement of claim filed on 29 July 2021. Broadly speaking, in respect of injuries alleged to arise from abuse in the 1960s, the plaintiff claimed damages, including for past and future economic loss.

2 In its defence, among other things, the defendant pleaded that the claim had been settled by deeds of release dated 14 December 2012 ('2012 deed') and 9 December 2015 ('2015 deed').

3 On 9 December 2022, pursuant to ss 27QD and 27QE of the Limitation of Actions Act 1958 (Vic) ('LAA'), the plaintiff filed a summons seeking to set the two deeds aside.

4 The application was heard by an Associate Justice on 28 February 2023.

5 Prior to the hearing, the defendant indicated that it did not resist the plaintiff's application in so far as he claimed damages for non-economic loss. However, the defendant sought to maintain the effect of the two deeds in respect of any claim made by the plaintiff for damages in respect of economic loss.

6 At the hearing, counsel for the plaintiff advanced submissions in respect of 'three specific topics', including -

... whether the terms of the 2012 deed and the 2015 deed support the reading propounded by the defendant ... .[1]

7 In that regard, counsel for the plaintiff submitted that, properly construed, the deeds meant that moneys received by the plaintiff were for non-economic loss.[2] Counsel for the defendant also addressed what was by then described as the 'construction point'.[3]

8 On 21 March 2023, the Associate Justice delivered judgment and made orders setting aside the deeds in their entirety.[4] In the circumstances, the Associate Justice said that it was unnecessary to determine the plaintiff's construction point.[5]

9 On 2 May 2023, the defendant applied for leave to appeal.[6]

10 In substance, the defendant contended that the Associate Justice had erred in setting aside the deeds in so far as they barred the plaintiff's claims for economic loss and sought relief that the deeds be set aside only in part, permitting the plaintiff to bring his claim for 'loss and damage excluding any economic loss'.[7]

11 The plaintiff did not file a cross-appeal or notice of contention. It follows that the plaintiff's construction point was not raised in the Court of Appeal.

12 On 23 April 2024, the Court of Appeal granted leave to appeal and allowed the appeal.[8] The Court of Appeal determined that the Associate Justice had erred in setting aside the deeds in their entirety.

13 In that regard, Beach and Macaulay JJA determined that the deeds should be set aside 'only in so far as they bar a claim for general damages'.[9] In that connection, their Honours accepted that -

(a) 'DZY's apprehension that the DSS [Department of Social Security] would clawback his carer's pension was a significant motivation, probably the dominant motivation, for him deciding not to pursue an economic loss claim';[10] and

(b) that was the 'chief explanation' for DZY's decision not to pursue an economic loss claim, not the 'existence and potential impact of the limitations and Ellis defences'.[11]

14 Lyons JA took a slightly different view of the operation of s 27QE of the LAA, but agreed in the 'ultimate outcome of the application and the appeal and the orders proposed by the majority'.[12]

15 On 21 May 2024, the plaintiff applied for special leave to appeal to the High Court of Australia. The High Court later granted special leave, albeit not in respect of all grounds sought to be raised.

16 In the subsequent High Court appeal, the principal issue concerned s 27QE(1) of the LAA. The plaintiff's 'construction point' was not sought to be raised.

17 On 9 April 2025, the High Court dismissed the appeal.[13] Among other things, Gageler CJ, Gordon, Edelman and Gleeson JJ stated -

[35] The evaluative judgment undertaken by the Court of Appeal identified, correctly, that the evidence did not allow the Court to be satisfied it was just and reasonable to set aside either deed insofar as it released the Trustees from an economic loss claim. There was no dispute about the relevant factual circumstances and the following circumstances were identified by both parties during the course of argument.

[36] First, there was no direct evidence from DZY that, at the time he signed each of the deeds, he decided to renounce his economic loss claim due to the limitation defence or the Ellis defence. Rather, the evidence suggested that he chose to renounce his economic loss claim because of concerns about a potential "clawback" of Centrelink benefits.

[37] Second, although DZY was affected by alcohol consumption and anxiety at relevant times in 2012 and 2015: DZY was legally represented and he was provided legal advice in relation to both deeds; he was not rushed into signing either deed, but rather had several weeks to think about them before signing; DZY's legal representatives certified that DZY appeared to understand the purport and effect of each deed; and DZY's statement that he felt like he had "no choice but to accept the offer because the legal barriers were too great" was not related to any conduct of the Congregation or to DZY's decision to renounce economic loss - rather, that statement appears to relate to DZY's acceptance of the settlement sum for his general damages claim.

18 The effect of the High Court's decision was to leave standing the orders made earlier by the Court of Appeal.

19 On 16 May 2025, the plaintiff's solicitors wrote to the defendant's solicitors referring to the decision of the High Court as well as the paragraph in the reasons of the Associate Justice that had left the plaintiff's construction point undetermined and relevantly stated -

The Plaintiff now intends to press his argument that the terms of the Deeds are such that the parties never contracted out of his right to pursue economic loss and that, therefore, the Deeds do not bar his pursuit of economic loss damages in this proceeding.[14]

20 The defendant's solicitors took issue with that proposal and, later, the defendant amended its defence to -

(a) rely specifically upon certain clauses in the deeds; and

(b) further or alternatively, plead res judicata, issue estoppel, Anshun estoppel and abuse of process.[15]

21 The plaintiff replied in terms that are presently immaterial.[16]

22 On 2 October 2025, Daly AsJ made the following order by consent -

The following questions shall be determined as preliminary questions, pursuant to rule 47.04 of the Rules:

Res judicata and estoppel

(A) By reason of the matters identified in paragraphs 41 - 65 of the defendant's amended defence, is the plaintiff prevented from pursuing a claim for economic loss in this proceeding?

Abuse of process

(B) By reason of the matters identified in paragraphs 41 - 55 and 66 of the defendant's amended defence, is the defendant entitled to:

(i) judgment in its favour in respect of, or alternatively an order permanently staying, any claim for economic loss pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2025 or in the inherent jurisdiction of the Court?; or

(ii) an order striking out any claim for economic loss pursuant to r 23.02 of the Rules or in the inherent jurisdiction of the Court?

The contractual effect of the settlement deeds on the economic loss claim

(C) Do the terms of the deed executed by the parties on 14 December 2012 and pleaded at paragraphs 26 to 30 of the amended defence dated 30 September 2025, release the defendant from a claim by the plaintiff for economic loss in respect of the injuries pleaded in the amended statement of claim dated 23 August 2021?

(D) Do the terms of the deed executed by the parties on 9 December 2015 and pleaded at paragraphs 36 to 40 of the amended defence, release the defendant from a claim by the plaintiff for economic loss in respect of the injuries pleaded in the amended statement of claim?

Consequential orders

(E) What orders should be made as a result of the answers to questions (A) - (D) above?[17]

23 The preliminary questions came on for determination on 9 December 2025.

24 Helpfully, the parties prepared a joint court book containing -

(a) relevant orders;[18]

(b) the detailed written submissions of both parties;[19]

(c) the current pleadings;[20]

(d) the 2012 deed and 2015 deed;[21] and

(e) affidavits of the respective solicitors.[22]

25 The two deeds and all of the affidavits contained in the joint court book were received into evidence.[23]

26 The affidavit material goes to some of the events to which I have already referred. Other parts of the affidavit material go to the circumstances in which the respective deeds were made.

BACKGROUND:

1. The Releasor has made the allegations set out in Clause 1 of this Deed against the Body Corporate and/or the Institute.

2. The Releasor, the Body Corporate and the Institute have agreed to settle the claims on the terms set out in this Deed.

OPERATIVE PROVISIONS:

1. Allegations

1.1 The Releasor alleges that:

1.1.1 he was in the care of the Christian Brothers at St Alipius Primary School, East Ballarat, Victoria ("the school") between 1964 and approximately 1968;

1.1.2 during his time at the school he was unlawfully assaulted or otherwise subjected to maltreatment by Brother Robert Best and Brother Fitzgerald 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"). The Releasor does not allege that he has suffered any economic loss and makes no demand for this as part of the claims. Full details of the claims are more fully set forth in ADR Statements filed on behalf of the Releasor and medical report of Professor Dennerstein dated 6 March 2012;

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. Settlement

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 $80,000.00 inclusive of all costs and disbursements ("the agreed sum").

2.2 The parties acknowledge that the agreed sum does not make any allowance for economic loss incurred by the Releasor.

2.3 The Releasor acknowledges that the agreed sum is paid:

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

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

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.

2.4 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.

2.5 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. Release

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. No liability and bar to further claims

4.1 The Releasor acknowledges and agrees that:

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. [24]

28 I should note that cl 7 of the 2012 deed confirms that it constitutes the entire agreement between the parties.

29 In about 2015, the plaintiff raised further claims in respect of counselling and therapy. It was said that there had earlier been a degree of non-disclosure.

30 Many of the terms of the 2015 deed are practically identical to terms appearing in the 2012 deed.

31 That said, the plaintiff's submissions highlighted some differences. In particular, the following clause in the 2015 deed is in identifiably different terms to its 2012 equivalent -

1.1.2 during his time at the school he was unlawfully assaulted or otherwise subjected to maltreatment by Brother Robert Best and Brother Fitzgerald, and he further alleges that relevant material as to the liability of the aforesaid Brothers was not disclosed at the time of the prior settlement referred to in Background C and that the prior settlement was therefore not settled with full disclosure and in good faith and was settled for an inadequate sum and that the Releasor has also incurred additional costs and expenses because of the alleged failure to provide such additional materials and as a result of all such unlawful acts he has sustained loss, damage and injuries and he may require specialist counselling and/or other therapy ("the claims"). The Releasor does not allege that he has suffered any economic loss and makes no demand for this as part of the claims. Full details of the claims are more fully set forth in the following:

a. ADR statements filed on behalf of the Releasor;

b. report of Professor Dennerstein dated 6 March 2012;

c. letter of Waller Legal dated 7 January 2015.[25]

32 Further, cl 2.2 of the 2012 deed does not appear in the 2015 deed. In the 2015 deed, cl 2.2 is the equivalent of cl 2.3 in the 2012 deed. That said, cl 2.2 of the 2015 deed is slightly different to its 2012 equivalent and provides, relevantly -

2.2 The Releasor acknowledges that the agreed sum is paid:

...

2.2.4 in full and final settlement of all loss and damage sustained by the Releasor as a result of the claims solely as an ex-gratia payment for non‑economic loss.

33 As I have indicated, the parties each prepared extensive written submissions.[26]

34 The nub of the plaintiff's contention in respect of the deeds was as follows -

On a plain reading of the terms of each Deed, and having regard to the context in which they appear and their purpose, the Defendant was not released from the Plaintiff's claim for economic loss against it. Any release was limited to the Plaintiff's claim for non-economic loss.[27]

35 In that connection, among other things, the plaintiff -

(a) referred to the principles relating to the construction of a contract as well as three 'rules' relating to the construction of a deed of release;[28]

(b) referred to the pleadings as well as 'key provisions' of the 2012 deed, particularly the defined term 'the claims';[29]

(c) in that regard, submitted that -

... properly construed, [the plaintiff's] claim or right to recover economic loss from the Defendant was not the subject of "the claims". It follows that the Defendant could not have been released from this claim or right by the 2012 Deed.[30]

(d) thereafter advanced submissions in respect of the text, context and purpose of the 2012 deed as well as its 'broader purpose' and surrounding circumstances;[31]

(e) in particular, submitted that -

(i) the allegations identified in the 2012 deed and the releasing clause are 'inherently interconnected';[32]

(ii) the words in cl 1.1.2 are critical because they -

... describe what is not alleged against the Defendant - namely economic loss - and thus what does not form part of the subject-matter in dispute.[33]

(iii) the 'actual subject of the dispute' must restrain the general words of the corresponding release;[34]

(iv) 'a settlement payment, which excludes (or does not 'allow') payment for a particular loss, would not result in the abandonment of that particular loss';[35]

(v) the suggestion that economic loss is incorporated in 'the claims' by general reference to the 'ADR Statement' and report of Professor Dennerstein cannot be accepted because reference terms cannot stand against 'agreement on an essential matter ... relating to the Plaintiff's right to recover economic loss';[36]

(vi) it was 'objectively known' to both parties that the 2012 deed would not include a component for damages for economic loss;[37]

(f) in respect of the 2012 deed, submitted in conclusion that -

In the end, the parties went to some length, in this Deed, to make plain there was not an allegation of economic loss, there was no demand for it in the claims, and no part of the agreed sum made an allowance for it. A reasonable businessperson would understand, taking a commonsense approach and factoring [in] the text, context and purpose of the Deed, that the right to recover his economic loss from the Defendant was never lost.[38]

36 The plaintiff thereafter addressed aspects of the 2015 deed as well as surrounding circumstances and ultimately submitted that the 2012 deed and 2015 deed had essentially the same effect.[39]

37 For its part, the defendant largely agreed with the legal principles identified by the plaintiff, but referred to further principles bearing upon the construction of deeds of settlement. In particular, the defendant noted that it is possible to enter into an arrangement that settles all conceivable further disputes.[40]

38 The defendant thereafter referred to aspects of the two deeds and noted that there was no suggestion in either that the plaintiff could make a subsequent claim. In that connection, the defendant submitted that -

1. ... the express words of the 2012 and 2015 deeds were so clear in the intention to release the defendant from any and all potential liability in relation to the alleged abuse, that there is no basis for an attempt to re-write the deeds, when construing them as a matter of law, to provide otherwise.

...

1. The relevant clauses which indicated that no economic loss claim was being made, being clauses 1.1.2 and 2.2 of the 2012 deed and clauses 1.1.2, 1.1.5 and 2.2.4 of the 2015 deed must be construed in this context. Any potential economic loss claim could not have survived the execution of the 2012 and 2015 deeds in circumstances where the deeds extinguished any and all causes of action which the plaintiff may have had against the defendant in relation to the alleged abuse. In particular, any form of damages or relief, such as general damages, medical expenses and/or economic loss, could not exist without there being an underlying cause of action available as against the defendant.[41]

39 The defendant thereafter addressed the surrounding circumstances as well as the subjective intentions and, in conclusion, submitted as follows -

1. In summary, the clauses detailed above demonstrate that the object and purpose of the 2012 and 2015 deeds was to provide for the extinguishing of any and all claims (including causes of actions) the plaintiff had in relation to the defendant arising out of the alleged abuse.
2. It was never the true purpose of the settlement agreements, as ascertained from the specific wording in the 2012 and 2015 deeds as well as the surrounding circumstances, to permit the plaintiff to retain the ability to make a subsequent claim for economic loss. Rather, the two deeds merely reflected the position adopted by the plaintiff, upon legal advice, to indicate that he had not sustained any economic loss as a result of the alleged abuse and therefore made no such claim.
3. The two prior deeds therefore operate as a complete bar to any attempt by the plaintiff to bring a further claim in respect of the alleged abuse ... .[42]

40 The defendant filed separate written submissions concerning the litigation history and the issues of res judicata, issue estoppel, Anshun estoppel and abuse of process.[43]

41 I have already referred to much of the relevant litigation history and it is presently unnecessary to refer in detail to the defendant's arguments in respect of res judicata, issue estoppel and Anshun estoppel.

42 In respect of abuse of process, the defendant referred to authority[44] and submitted that -

Even in circumstances where the specific circumstances do not satisfy the elements of an estoppel or res judicata, a court may stay all or part of a proceeding (or strike out all or part of a claim) where a plaintiff seeks to re-litigate a claim which has already been, or could have been, disposed of previously. This is on the basis that such conduct would be unjustifiably vexatious and oppressive to a defendant and therefore constitute an abuse of process.[45]

43 The defendant later developed submissions that the plaintiff's intention to now pursue a claim for economic loss damages was contrary to the orders of the Court of Appeal, oppressive to the defendant and apt to bring the administration of justice into disrepute.[46]

44 In response, the plaintiff took no issue with the defendant's summary of the applicable principles, although he submitted that the defendant had misapplied them.[47]

45 The plaintiff thereafter went to certain details of the relevant principles and explained why it was submitted that none of them presently apply. In particular, it was submitted that -

(a) the relevant orders of the Court of Appeal do not preclude a claim for economic loss;[48]

(b) in the manner in which the construction point arose before the Associate Justice -

... it was reasonable for the Plaintiff to put the Defendant on notice of a trial issue, in the event that the Deeds remained as a bar. With that bar removed, at first instance, it was neither appropriate nor necessary to further agitate any construction issues.[49]

... it was not "otherwise unreasonable" for the Plaintiff not to file a notice of contention, cross-application for leave to appeal or to make oral submissions at the hearing of the appeal in respect to the construction issues raised, but not determined, at first instance. It could not be properly contended that the construction issue was "so relevant" to, "so connected" with, or "of such importance" in relation to the Plaintiff's application to set aside (even putting to one side the determination of the application by [the Associate Justice]), that he would be expected to agitate this issue on appeal. The construction issues were, and are, primarily of relevance to distinct rights in contract and equity, these being trial issues in the event the Deeds were not set aside in whole, given the releases in the Deeds are pleaded as material facts by the Defendant.[50]

(d) the Court's inherent jurisdiction to stay proceedings as an abuse of process should only be exercised in exceptional cases and the present case does not rise 'to the level of exceptionality required'.[51]

46 In the context described, in oral address, respective counsel drew attention to only the essential substance of their arguments.

47 In that regard, senior counsel for the defendant submitted that -

(a) the order of the Court of Appeal 'can only be sensibly understood as having partial effect in that the agreements were set aside only in part';[52]

(b) on closer inspection, before the Associate Justice, counsel for the plaintiff had submitted not that the economic loss claim was abandoned but that it was not being paid for;[53]

(c) by its order, the Court of Appeal dealt with the contractual rights;[54]

(d) it was unreasonable for the plaintiff not to have raised the construction point 'at the Court of Appeal level or following';[55]

(e) based on the litigation history, 'propounding the economic loss case [now] ... constitutes an abuse of process';[56]

(f) the plaintiff's submission that 'in making the argument about the breadth of the release [before the Associate Justice], [they] were highlighting a trial issue' was not what was said at the time;[57]

(g) no adequate explanation has been given;[58]

(h) in respect of the deeds, there is an ambiguity in what is meant by 'the claims';[59]

(i) that said -

... the ... objective circumstances that are outlined in the material make it clear that what was really going on here was the concern about Centrelink. Our friends submitted as much before [the Associate Justice]. They now seek to sort of resile from that position and say, this clearly excludes any claim for economic loss.

We just pause there to say ... is that a sensible construction to give this deed? Is it sensible to say, what was really being done here was the Christian Brothers were paying $80,000 for some of the claim but not all of it, on the idea that DZY could later come back and sue them just for economic loss?

It's against the commerciality of this deed, it's against the prior submissions that have been made and ... it's against what his own lawyer told him.

He was told that this was a once and for all deal and that that was the end of it.[60]

(j) fundamentally, by cl 4 of the deeds, the plaintiff does not have a cause of action in order to pursue a claim for economic loss.[61]

48 In response, among other things, counsel for the plaintiff submitted that -

(a) in the proceeding, there had been 'a determination of the set-aside question', but that was not 'a determination of the construction question';[62]

(b) it was reasonable for the plaintiff not to have raised the construction point in the Court of Appeal;[63]

(c) before the Associate Justice, the construction point had been 'additional' and not 'the primary focus of the application being made';[64]

(d) it would not have been appropriate for the plaintiff to file a notice of contention or cross-appeal in the Court of Appeal;[65]

(e) the deeds did not release the defendant from its obligation with respect to the payment of economic loss 'in the context of the settlement agreements at the time';[66]

(f) there had been a logic in what was done because the defendant had obtained 'all the usual advantages that a defendant gets from resolving a matter';[67]

(g) whilst 'the terms of the deed are not as clear as they could be', it is tolerably clear that 'what is being released is with respect to the claims as defined';[68]

(h) as to surrounding circumstances, DZY's motive, which included concern about Centrelink, should not be confused with the intention of both parties that the settlement was to exclude damages for economic loss;[69]

(i) DZY's difficulty with Centrelink had 'no bearing' on the value of his economic loss claim;[70] and

(j) fundamentally, the deeds are not unclear and, even if they are, the surrounding circumstances indicate that the parties intended to settle damages for pain and suffering only and to exclude economic loss.[71]

49 In reply, senior counsel for the defendant submitted that -

(a) the idea that the appeal process was divorced from the issue of economic loss should be rejected, as the appeal was all about whether or not the plaintiff could sue for economic loss;[72] and

(b) in respect of the presumed objective intention of the parties to the deeds -

What ... is conspicuously absent is any reference in any of the material, or any particular facts that might assist our friends to successfully propound the contention that DZY retained a right to sue for economic loss.

Where is it in the material that, objectively construed, no matter what any of these deeds say, that there was, in the minds of the parties, the idea that only part of the case was being settled? There is just nothing to support that ... and it should be rejected .[73]

50 It is convenient first to address preliminary questions (C) and (D) which, in substance, concern the scope of the releases effected by the two deeds and, in particular, whether the plaintiff retained a right to sue in respect of economic loss.

51 As earlier noted, both parties essentially accepted as relevant the following passage from the reasons of French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd -

1. The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
2. In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
3. Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
4. However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
5. Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.
6. Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption "that the parties ... intended to produce a commercial result". Put another way, a commercial contract should be construed so as to avoid it "making commercial nonsense or working commercial inconvenience". [74]

52 That said, the plaintiff, in particular, relied upon the following often quoted passage from the reasons of Dixon CJ, Fullagar, Kitto and Taylor JJ in Grant v John Grant & Sons Pty Ltd ('Grant') -

... a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor.[75]

53 In that instance, as their Honours observed, the plaintiff did not know of the defendant's liability it then sought to enforce, did not intend to release it as part of the transaction and did not know of any intention on the part of the defendant that it should be released. Thereafter, their Honours described the applicable principle as follows -

... the equity to have the general words of a release confined to the true purpose of the transaction ascertained from the scope of the instrument and the external circumstances.[76]

54 The defendant also referred to recent consideration of the principle in Grant, particularly the following passage from the reasons of Whelan JA, with whom McLeish JA and Garde AJA each relevantly agreed, in Doggett v Commonwealth Bank of Australia -

1. Grant v John Grant has been cited and relied upon in innumerable cases since it was decided. The principles articulated have not been altered by subsequent authority. The principles apply whether the settlement is a formal settlement embodied in a deed, as was the case in Grant v John Grant itself, or whether it is a settlement arising through correspondence between the parties. Where the settlement does arise as the culmination of correspondence between the parties it is necessary to review the entire course of that correspondence 'to identify the commercial purpose and subject matter, that is the disputes and claims, to which the points of agreement ... were intended to relate'.
2. As Pembroke J observed in The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd (No 2) [(2012) NSWSC 322], the principle for which Grant v John Grant stands is sometimes described more widely than is justified. It is not authority for the proposition that a release can only ever apply to matters then known to the parties. It is possible to enter into an arrangement which does settle 'all conceivable further disputes'. The equitable principles articulated in Grant v John Grant restrain a party from unconscientious reliance on legal rights. Particular circumstances may reveal that it would be unconscientious to allow the general words of a release to be relied upon. Grant v John Grant was such a case. But there will be no room for the application of those equitable principles if it is clear that the parties intended the general words of a release to encompass all conceivable further disputes.
3. Evidence of non-awareness of the existence or likelihood of a particular claim may or may not be significant in the particular circumstances.

55 In the present instance, a limited sequence of events and correspondence culminated in the making of the 2012 deed, particularly -

(a) on 22 October 2012, the solicitor for the plaintiff sent the solicitor for the defendant an ADR Statement which, among other things, particularised claimed injury in the nature of Post Traumatic Stress Disorder.[78] In respect of claimed loss and damage, the ADR Statement included the following particulars -

...

(c) As a further consequence of the abuse, [DZY's] personal, educational and vocational development has been significantly impaired.

(d) Full particulars of any claim for loss of earnings or loss of earning capacity will be provided prior to trial.[79]

(b) On 7 November 2012, the solicitor for the plaintiff sent the solicitor for the defendant a medico-legal report of Professor Dennerstein, psychiatrist.[80] In respect of whether the plaintiff's capacity for employment had been adversely affected by the alleged assaults, Professor Dennerstein stated -

[DZY] started to avoid school from around Grade 4 onwards. As a result his educational attainment was severely curtailed and he was barely literate when he left school. This has severely impacted on his employability and life chances. As well, he has had difficulty dealing with older males and males in authority and this has adversely affected his capacity for employment.[81]

(c) the matter was mediated on 21 November 2012;[82]

(d) on 26 November 2012, the solicitor for the defendant sent the solicitor for the plaintiff a 'Deed of Release as amended' and 'HIC documentation'. The covering letter referred to 'the Offer of Settlement made of $80,000 inclusive of costs and disbursements which is open for acceptance until Friday, 14 December 2012';[83]

(e) on 5 December 2012, the solicitor for the plaintiff emailed the solicitor for the defendant relevantly as follows -

Our ADR [Statement] refers to an economic loss component. We received instructions on the day not to include a loss of earnings component.

This matter was put to you on the basis that there was no claim for economic loss - a figure of $130,000 was put by ... [counsel for the plaintiff at the mediation]. Ultimately, after exchanges of offers, your final offer was 80,000.00 all in.

I am obtaining instructions about the offer.

I just need to clarify a couple of things

1. ...

2. Can you please amend the release to say that there is no claim for loss of earnings. I think this could be inserted after [clause] 1.1.2. It's important that any release reflects that there is no loss of earnings component.

Could you please send me an amended release for consideration?[84]

(f) the solicitors spoke by telephone the same day and the note of the plaintiff's solicitor relevantly reads 'No eco loss' and 'NO PROBLEM';[85]

(g) an amended deed of release was sent to the plaintiff's solicitor on 10 December 2012;[86]

(h) on 13 December 2012, the solicitor for the plaintiff wrote to the solicitor for the defendant confirming that the plaintiff had accepted the offer and that the executed deed would be returned in due course;[87]

(i) the plaintiff executed the 2012 deed on 14 December 2012;[88] and

(j) the 2012 deed is accompanied by a certificate of the plaintiff's solicitor to the effect that she explained the deed to the plaintiff and that he appeared to understand its 'purport and effect'.[89]

56 That sequence of events does not reasonably suggest that -

(a) such claims as the plaintiff might have in respect of the alleged abuse against the defendant and others were other than finally settled; and

(b) there was any intention of the parties that the plaintiff should retain a right to sue the defendant for damages for economic loss arising out of the alleged abuse.

57 Be that as it may, each of the parties primarily directed their attention to the terms of the 2012 deed, the relevant terms of which I have earlier extracted in full.

58 In particular, as I have noted, the plaintiff essentially submitted that -

(a) the defined term 'the claims' identifies what the plaintiff did not allege;

(b) it follows that the economic loss claim did not form part of the subject matter in dispute;

(c) the references to the ADR Statement and the report of Professor Dennerstein cannot stand against the agreement between the parties concerning the subject matter of the dispute;

(d) the general releasing words are restrained by the 'actual subject of the dispute'; and

(e) consequently, the plaintiff retains the right to claim and recover damages for economic loss from the defendant.

59 In respect of the present issue, both parties essentially acknowledged that, in some respects, both deeds were not exactly a model of drafting clarity.

60 That said, directing present attention to the 2012 deed, it will be evident that the 'BACKGROUND', or short recitals, refer to 'the allegations' that the plaintiff 'has made', as set out in cl 1, and which the parties have agreed to settle.

61 Clause 1 then sets out the 'Allegations'. In particular, cl 1.1.2 refers to alleged unlawful assaults and maltreatment as a result of which the plaintiff is said to have 'sustained loss, damage and injuries and ... may require specialist counselling and/or other therapy'. The defined term 'the claims' appears thereafter in brackets.

62 It follows that, strictly speaking, the defined term does not limit, in any way, the nature of the 'loss, damages and injuries' said to have been sustained.

63 I might say that the expression 'loss, damage and injuries' similarly appears in cls 1.1.3 and 1.1.4.

64 In any event, although I have earlier extracted cl 1 in full, it is presently convenient to re-state the text appearing after the defined term in cl 1.1.2 -

The Releasor does not allege that he has suffered any economic loss and makes no demand for this as part of the claims. Full details of the claims are more fully set forth in ADR Statements filed on behalf of the Releasor and medical report of Professor Dennerstein dated 6 March 2012;[90]

65 I would infer that the first of the above sentences was inserted by the solicitor for the defendant, perhaps out of intended place, following the email and/or telephone call with the solicitor for the plaintiff on 5 December 2012. In that regard, as I have noted, the plaintiff's solicitor suggested that the amendment 'could be inserted after [clause] 1.1.2'.

66 In any event, the two sentences are plainly non-chronological in circumstances where the earlier recitals make it clear that cl 1 is intended to identify the allegations that the plaintiff 'has made'.

67 In that context, it seems to me that the balance of cl 1.1.2 should properly be understood as indicating that while the plaintiff 'has made' the claims 'fully set forth' in the ADR Statement and report of Professor Dennerstein (which, of course, constitute references to the potential for a claim in respect of economic loss and loss of earning capacity arising from the alleged abuse), the plaintiff now 'makes no demand for' and so 'does not allege' any such potential loss.

68 It follows that, when read in proper context, it is not said that a claim for economic loss arising from the alleged abuse could never have been, or in the future might never be, theoretically capable of being worked up. After all, the nascent elements of such a claim appear in the ADR Statement and the report of Professor Dennerstein. The point is that the plaintiff had essentially elected to forego the potential in such a claim in order that the matter might then be finally settled.

69 Accordingly, the plaintiff's contention that cl 1.1.2 defines a subject matter in dispute that did not admit of any potential for a claim to be made in respect of economic loss is not able to be accepted. Nor, for the reasons which I have endeavoured to outline, can it be accepted that the ADR Statement and the report of Professor Dennerstein stand against the agreement between the parties in respect of the subject matter of the claim.

70 The above construction of the 2012 deed also seems to me to be conformable with the clauses that thereafter follow.

(a) clause 2 is expressly directed to 'Settlement';

(b) clause 2.1 records the defendant's promise to pay the agreed sum in consideration of the plaintiff's 'promises set out in this Deed';

(c) clause 2.2 records that the agreed sum 'does not make allowance for economic loss incurred by the Releasor' (which, of course, is at least ambiguous as to whether economic loss had in fact been or could in the future otherwise have been 'incurred');

(d) clause 2.3.2 records the plaintiff's acknowledgement that the agreed sum is 'in full extinguishment of his rights';

(e) clause 2.2.3 [sic: 2.3.3] refers to the potential for deduction of amounts as a consequence of legislation including, of course, 'social services (Centrelink) legislation'; and

(f) clause 2.5 records the undertaking of the plaintiff to pay any money assessed under such legislation out of the agreed sum.

72 Bearing in mind that potential 'clawbacks' are bread and butter considerations in the day to day settlement of personal injury claims, and that the plaintiff and defendant were each represented by extremely experienced solicitors in the field, the latter two clauses stand as strong indicators of why it was that the plaintiff had come to renounce any potential claim for economic loss.

(a) the terms of the 2012 deed directly suggest a rational explanation for why it was that any actual or potential economic loss had come to be renounced by the plaintiff;

(b) that explanation is quite different to the plaintiff's contention that the effect of the deed was to preserve in him a future right to sue the defendant for damages for economic loss arising out of the abuse; and

(c) such a strikingly unusual result is, of course, not directly stated in the clauses to which I have referred and is profoundly contrary to those to which I will immediately come.

(a) clause 3.1 'releases and forever discharges' the defendant from 'any claim, proceeding, action, cause of action or charge that he may have or may have had';

(b) clause 4.1.1 records the plaintiff's agreement that he will 'make no further claim for damages, expenses, treatment costs or compensation'; and

(c) clause 4.1.3 records the plaintiff's agreement that the deed may be pleaded as a bar to any such 'claim, action, cause of action, charge or any other proceeding'.

(a) the subject matter of the dispute considered by the deed was any claim for 'loss, damage and injuries' that the plaintiff might then have had or in the future might have had arising out of the alleged abuse; and

(b) in respect of that subject matter the plaintiff (1) accepted the agreed sum 'in full extinguishment of his rights', (2) released the defendant forever, (3) agreed not to make any further claim, and (4) agreed that the deed could be pleaded as a bar to any future claim.

76 It follows that the present circumstances are quite different to those considered by the High Court in Grant. Among other things, it is not a case in which there is any apparent unconscientiousness and, even if there were, it would not presently be able to be remedied by simply reading down the releasing clause.

77 In my view, fundamentally, subject to any relief ordered pursuant to the subsequently enacted provisions of the LAA, the 2012 deed settled any cause of action in respect of the plaintiff's loss, damage and injuries arising from the alleged abuse.

78 For completeness, as I have noted, while there are differences between the terms of the 2012 deed and 2015 deed, the presently relevant parts of them are so sufficiently similar that respective counsel essentially addressed the same argument in respect of each and neither identified a scenario in which one deed might have the construction contended for by the plaintiff but the other deed would not.

(a) the circumstances surrounding the making of the 2015 deed are no more supportive of the present contentions of the plaintiff than those surrounding the making of the 2012 deed; and

(b) in neither instance is it necessary for me to consider the subjective intentions of the parties.

(a) the 2012 deed released the plaintiff's causes of action in respect of the alleged abuse;

(b) it follows that subject to being set aside pursuant to the relevant provisions of the LAA, the plaintiff did not have a right to claim in respect of any loss, damage or injuries arising from the alleged abuse, including economic loss;

(c) the reasons outlined in respect of the 2012 deed should broadly be taken to apply also to the construction of the 2015 deed; and

(d) preliminary questions (C) and (D) should each be answered 'yes'.

E. Res judicata, estoppel and abuse of process

81 Having regard to the above answers to preliminary questions (C) and (D), it might be thought to be strictly unnecessary to determine preliminary questions (A) and (B)(i) and (ii).

82 However, as the construction point was not determined earlier in the litigation and that event might be said to have contributed, albeit unwittingly, to the present circumstances (and, more broadly, the issues involved are unquestionably important), it is desirable that I determine at least part of preliminary questions (A) and (B)(i) and (ii).

(a) preliminary question (A) concerns res judicata, issue estoppel and Anshun estoppel;

(b) preliminary questions (B)(i) and (ii) concern abuse of process; and

(c) each preliminary question falls for determination with reference to the same factual substratum.

84 As earlier noted, oral argument ultimately focussed upon abuse of process. It follows that I will put to one side any specific consideration of the defendant's contentions in respect of res judicata, issue estoppel and Anshun estoppel.

85 The presently applicable rules and principles were not in dispute.

86 In that regard, the Court may stay any claim in a proceeding or strike out any part of a pleading that is an abuse of process.[91]

87 In Rogers v The Queen, McHugh J summarised the categories of abuse of process as follows -

Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. In Walton v. Gardiner [(1993) 177 CLR 378], Mason C.J., Deane and Dawson JJ. said that the jurisdiction to stay proceedings that are an abuse of process "extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness".[92]

88 His Honour's summary has since been widely referred to with approval.[93]

89 In particular, in Batistatos v Roads and Traffic Authority of New South Wales, Gleeson CJ, Gummow, Hayne and Crennan JJ referred to his Honour's summary and added -

... the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.[94]

90 Later, in Tomlinson v Ramsey Food Processing Pty Ltd, French CJ, Bell, Gageler and Keane JJ stated -

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.[95]

91 Very recently, in Abdou & Anor v Trowsdale & Ors, Craig J cited a range of relevant authorities and encapsulated the presently applicable principles as follows -

1. Courts must be astute to protect litigants and the system of justice against abuse of their processes. The use of the court's processes to occasion unjustifiable oppression to a party or bring the administration of justice into disrepute enlivens the power to permanently stay a proceeding as an abuse. Whilst the onus is a 'heavy one' to be exercised in 'exceptional circumstances', that power must be interpreted and applied in light of the overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
2. There are 'varied circumstances' in which the use of the court's processes will amount to an abuse. Those varied circumstances defy exhaustive statement.[96]

92 As earlier noted, the defendant essentially submitted that the plaintiff had acted unreasonably in not earlier pursuing the construction point and in now 'propounding the economic loss case'.[97]

93 I have earlier referred to the sequence of events commencing with the hearing before the Associate Justice. Several aspects of that history are of present relevance.

94 Before the Associate Justice, counsel for the plaintiff raised the construction point as one of three specific contentions. In that regard, it was said that the terms of the deeds did not 'support the reading propounded by the defendant'.[98]

95 That is, it was being said, perhaps then not as clearly as it now would be, that the deeds did not in fact release the defendant from the plaintiff's claim for economic loss. The Associate Justice certainly understood the submission that way,[99] and the plaintiff did not submit that his Honour was in error for having done so.

96 There are several things that should be said about the plaintiff raising the construction point before the Associate Justice -

(a) broadly speaking, the summons before the Associate Justice raised the issue whether it was just and reasonable to set aside the deeds;

(b) more precisely -

(i) under s 27QD(2) of the LAA, the plaintiff was able to and did make an application to set aside 'settlement agreement[s]' giving effect to a settled 'cause of action';[100] and

(ii) under s 27QE(1)(a), if satisfied that it was just and reasonable to do so, the court may make an order setting aside the 'settlement agreement[s]';

(c) that said, under s 27QE(1), it is possible for the court to order that a settlement agreement be set aside only in part;[101]

(d) in the present instance, the defendant did not oppose the deeds being set aside in part, particularly in order that the plaintiff might only pursue a claim for damages for non-economic loss;

(e) for his part, the plaintiff contended that the deeds should be set aside in their 'entirety' in order that he might also pursue a claim for economic loss;[102]

(f) that approach was, of course, premised on an assumption that the deeds, in fact, released the defendant from any claims for economic loss;

(g) however, the plaintiff evidently did not accept that assumption and, in fact, later in the hearing before the Associate Justice, was understood to contend that the deeds did not have that effect.

97 In the circumstances to which I have referred, it was, at the very least, appropriate for the plaintiff to raise the construction point before the Associate Justice. In a practical sense, if the plaintiff was right about his construction of the deeds -

(a) the deeds operated to bar only his claim for damages for non-economic loss;

(b) the defendant did not oppose the deeds being set aside in order to pursue such a claim; and

(c) the plaintiff would be able to claim damages for economic loss without the deeds being set aside at all.

98 More fundamentally, if the plaintiff was right about his construction point, that would necessarily bear upon any order that might properly be made pursuant to s 27QE(1) of the LAA.

99 In particular, if the deeds did not, in fact, have the effect of releasing the defendant from the plaintiff's claim for economic loss, then the Court could not be satisfied that it was just and reasonable to make an order setting aside the deeds to that extent. To be clear, no such order could be made because, on that view, the deeds did not effect a 'settlement of a cause of action' so as to prevent the plaintiff from claiming economic loss.

100 I should add that contrary to the submission now sought to be advanced on behalf of the plaintiff, the transcript of the hearing before the Associate Justice does not indicate that the plaintiff was then raising the construction issue merely to put the defendant on notice of a 'trial issue'.

101 In any event, the Associate Justice determined the application, evidently upon the proffered assumption that only if the deeds were set aside in their entirety could the plaintiff pursue a claim for economic loss. Upon that assumption, the Associate Justice also found it unnecessary to determine the construction point.

102 At that point, whatever might have been the state of mind and precise submission on the issue of construction advanced by counsel who appeared for the plaintiff at the hearing of the application, the Associate Justice, in his reasons, identified the undetermined construction point and its significance should thereafter have been quite apparent.

103 As earlier noted, the defendant then sought leave to appeal. Two things may be said about that step -

(a) among the reasons identified by the defendant as supporting a grant of leave to appeal was the contention that 'if the decision to set aside the previous settlements in their entirety remains (as opposed to being set aside only in part) ... [the defendant] will be exposed to a significant economic loss claim';[103] and

(b) among the orders sought, if leave to appeal were granted and the appeal allowed, were orders that the deeds be 'set aside only in part', such that the plaintiff is 'permitted to bring ... a claim for loss and damage excluding any economic loss'.[104]

104 It follows that, in the application for leave to appeal, the defendant was inviting the Court of Appeal to act upon several premises that flowed from the determination of the Associate Justice, particularly that -

(a) setting the deeds aside entirely would permit the plaintiff to claim damages for non-economic loss as well as damages for economic loss; and

(b) if the deeds were only set aside to the extent to which they bar a claim for damages for non-economic loss, the plaintiff would remain barred from claiming damages for economic loss.

105 Further, if the defendant was successful in displacing the decision of the Associate Justice, and obtaining the orders to which I have referred, the Court of Appeal would be setting aside the deeds only in part and, at least arguably, authorising the conduct by the plaintiff of a claim for loss and damage 'excluding any economic loss'.

106 Notwithstanding the above, the plaintiff did not thereafter file a notice of contention or, seemingly, even advert in submissions to any prospect that it was doing other than accepting the assumed premises and therefore abandoning the construction point that is plainly inconsistent with them.

107 Indeed, it might be said that by a combination of actions and omissions, the plaintiff seems to have thereafter adopted that stance in the Court of Appeal and, subsequently, the High Court. In neither place is it evident that the plaintiff adverted to his construction point even though, as I have sought to explain, his construction point, if a good one, bore just as critically upon those appeals as it had upon the application originally heard by the Associate Justice.

108 The relevant inaction of the plaintiff meant that the reasons of the members of the Court of Appeal and High Court came to be littered with passages that disclose that each Court was acting upon premises that the plaintiff would now seek, belatedly, to dispute and displace.

109 In that regard, in the reasons of the Court of Appeal, Beach and Macaulay JJA referred extensively to the making of the 2012 deed and 2015 deed[105] and also to the 'necessary condition' for the operation of s 27QE, namely a 'previously settled cause of action'.[106]

110 Their Honours later identified the question to be determined, as follows -

The limited question to be considered is whether the associate judge erred in finding that it was just and reasonable to set aside the two deeds in their entirety - rather than set them aside only in so far as they barred a claim for general damages, leaving intact the bar to a claim for damages for economic loss.[107]

111 That passage is, of course, firmly based in a premise that the plaintiff would now seek to contest, namely that the deeds, in fact, operated to bar 'a claim for damages for economic loss'.

112 The same premise may be seen in other paragraphs of the their Honours' reasons, as well as in the separate reasons of Lyons JA.[108]

113 Importantly, the premise is also apparent in the orders ultimately made by the Court of Appeal, particularly -

Pursuant to s 27QE(1)(a) of the Limitation of Actions Act 1958:

(a) the deed of release between the respondent, the applicant and Brother Vincent Duggan dated 14 December 2012 be set aside only in part, such that the respondent be permitted to bring his claim for damages as framed at the time of that deed, that is a claim for loss and damage excluding any economic loss; and

(b) the deed of release between the respondent, the applicant and Brother Peter Clinch dated 9 December 2015 be set aside only in part, such that the respondent be permitted to bring his claim for damages as framed at the time of that deed, that is a claim for loss and damage excluding any economic loss.[109]

114 That is, the orders of the Court of Appeal are premised in the notion that the deeds could be 'set aside only in part', leaving the deeds otherwise to bar any claim by the plaintiff for damages for economic loss.

115 I should add that the orders identified above are also practically identical to the form of orders that had relevantly been sought by the defendant in its application for leave to appeal.

116 As indicated, the same premise may be seen in the reasons of the High Court. Indeed, in the very first paragraph of their reasons, Gageler CJ, Gordon, Edelman and Gleeson JJ stated -

In December 2012, the appellant, DZY, entered into a settlement deed ("the 2012 deed") with the respondent, the Trustees of the Christian Brothers ("the Trustees"). Under the 2012 deed, DZY agreed to release the Trustees from liability for a claim that DZY was sexually assaulted in the 1960s while he was a student at a school operated by the Congregation of Christian Brothers ("the Congregation"). In 2015, DZY and the Trustees entered into a further deed ("the 2015 deed"). DZY agreed, under both deeds, not to bring any further claim for damages arising from the alleged sexual assaults.[110]

117 As in the earlier reasons of the members of the Court of Appeal, the premise may also be seen in subsequent aspects of the reasoning of the High Court.[111]

118 As I have earlier noted, the High Court dismissed the appeal leaving in place the orders of the Court of Appeal. However, subsequently, and now, the plaintiff would seek to conduct the proceeding on the basis that he 'never contracted out of his right to pursue economic loss' with the consequence that the deeds 'do not bar his pursuit of economic loss damages' at all.[112]

119 To say the very least, the situation is an extraordinary and unfortunate one -

(a) at the hearing before the Associate Justice, the plaintiff contended that the deeds should be set aside in their 'entirety' in order that he might also pursue a claim for economic loss;

(b) at the same time, the plaintiff sought to develop an argument that the construction of the deeds was such that, in fact, he was not barred from pursuing a claim against the defendant for economic loss;

(c) at no point, did the plaintiff precisely identify for the assistance of the Associate Justice the importance and significance of that argument, if correct, in respect of any relief that might be obtained by him under s 27QE(1) of the LAA;

(d) the Associate Justice came to act upon the proffered premise that setting aside the deeds entirely would do more than simply set aside a bar upon the plaintiff claiming damages for non-economic loss;

(e) essentially the same premise came to be at the heart of the defendant's application for leave to appeal and, it seems, the plaintiff's subsequent appeal to the High Court;

(f) at no point in those appeals did the plaintiff seem to indicate to either appeal court that the premise was anything other than accepted;

(g) in particular, the plaintiff did not file and serve a notice of contention in response to the defendant's application for leave to appeal to the Court of Appeal;

(h) yet now, belatedly, and having allowed courts at all levels to act upon the premises to which I have referred, the plaintiff would seek to resuscitate a point that has fundamentally been overtaken by events; and

(i) in particular, the plaintiff would now seek to conduct the proceeding on the basis that the deeds 'do not bar his pursuit of economic loss damages' when the orders of the Court of Appeal state quite plainly that the deeds should 'be set aside only in part' and that the plaintiff may bring his claim for loss and damage 'excluding any economic loss'.

120 As earlier noted, in written submissions, counsel for the plaintiff dismissed the situation as involving no more than 'distinct rights in contract and equity' that were 'trial issues' in the event that deeds were not set aside 'in whole'.[113]

121 It will be evident that the present issue was not simply a 'trial issue' and that it went fundamentally to the issues before the Associate Justice, Court of Appeal and, ultimately, the High Court.

122 In my view, the present endeavour is an extreme, regrettable, unreasonable and embarrassing attempt to debase the assumptions upon which the highest appellate courts, in particular, were permitted by the plaintiff to act and make orders.

123 Moreover, whether the issues might presently be said to involve 'rights in contract' or a right arising from the relevant orders made by the Court of Appeal, the fundamental position is that if the plaintiff were permitted now to conduct his proceeding on the basis foreshadowed, that would involve him bringing a claim of a kind that the Court of Appeal and High Court plainly thought that they were excluding. That was, however, because for the whole way along the plaintiff did not inform either appeal court that he intended ultimately to contest a fundamental premise upon which both courts were being allowed to act.

(a) acknowledging that the onus is presently a heavy one, the circumstances are plainly extraordinary;

(b) in particular -

(i) the events are extreme, regrettable, unreasonable and embarrassing;

(ii) specifically, having regard to the relief foreshadowed by the defendant if its application for leave to appeal and appeal were successful, it was unreasonable for the plaintiff not to file a cross-appeal or notice of contention in respect of his construction point, if he wanted to maintain it;

(iii) essentially no reasonable explanation was proffered by the plaintiff in respect of either that unreasonable failure to act, or the events more generally; and

(iv) the combined actions and omissions of the plaintiff seem to have unfolded unaffected by and contrary to considerations of efficiency, timeliness and cost effectiveness;

(c) it would not now be just to permit the plaintiff to resile from his combination of acts and omissions in order that he might conduct his proceeding on a basis fundamentally at variance with the assumptions upon which the appellate process, in particular, has been allowed to rest and act.

125 In short, the circumstances are such that the course presently foreshadowed by the plaintiff stands as unjustifiably oppressive to the defendant and apt to abuse the processes of the court such that, if it were allowed to occur, the administration of justice would be brought into disrepute.

126 The answers to the relevant preliminary questions are as follows -

127 It follows from the above that while it is unnecessary to decide preliminary question (A), the answers to preliminary questions (B), (C) and (D) are essentially 'yes'.

128 In respect of preliminary question (E), I would propose to raise with the legal representatives the proper form of the orders to be made. In that regard, there is, of course, a difference between acting upon the answer to preliminary question (B), on the one hand, and the answers to preliminary questions (C) and (D), on the other.

129 That said, if it were determined to be appropriate to act upon the essential answer to preliminary question (B), it would seem to follow that an order should at least be made to the effect that the plaintiff's claim, insofar as it relates to a claim for damages for economic loss, should be either stayed or struck out as an abuse of process.

[1] Joint Court Book ('JCB') 140. See also JCB 167-72.

[4] DZY v Trustees of the Christian Brothers [2023] VSC 124 ('DZY - AsJ').

[8] Trustees of the Christian Brothers v DZY (a pseudonym) (2024) 78 VR 1 ('DZY - CofA').

[11] Ibid [150]. Cf Trustees of The Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565.

[12] DZY - CofA (n 8) 36-7 [154(4)].

[13] DZY v Trustees of the Christian Brothers [2025] HCA 16; (2025) 99 ALJR 806 ('DZY - HCA').

[28] JCB 10-12 [5]-[8]. Cf Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 ('Mount Bruce'); Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 ('Grant').

[33] JCB 16 [31] (emphasis in original).

[40] JCB 47-9 [4]-[10]. Cf Doggett v Commonwealth Bank of Australia [2015] VSCA 351; (2015) 47 VR 302 ('Doggett').

[44] See especially Walton v Gardiner (1993) 177 CLR 378, 393; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 273-4 ('Rogers'). See also Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, 153-5 [97]; I Cook Foods Pty Ltd v Greater Dandenong City Council (No 3) [2025] VSC 577, [11].

[45] JCB 38 [40] (citations omitted).

[50] JCB 66 [20] (emphasis in original) (citations omitted).

[74] Mount Bruce (n 28) 116-17 (citations omitted). The defendant also directed aspects of its argument to this passage: see JCB 47[6].

[77] Doggett (n 40) 319 (citations omitted).

[91] Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 23.01(1), 23.02(d).

[92] Rogers (n 44) 286 (citations omitted).

[93] See, eg, Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 452 [89]; Angeleska (known as Slaveska) v State of Victoria [2015] VSCA 140; (2015) 49 VR 131, 172-3 [154].

[94] [2006] HCA 27; (2006) 226 CLR 256, 267 [15] (citations omitted).

[95] [2015] HCA 28; (2015) 256 CLR 507, 518-19 [25] (citations omitted).

[96] [2026] VSC 82 (citations omitted).

[100] Cf Limitation of Actions Act 1958 (Vic) s 27OA (definition of 'settlement agreement').

[101] Cf Pearce v Missionaries of the Sacred Heart [2022] VSC 697.

[102] JCB 137-8. Cf DZY - AsJ (n 4) [4].

[105] DZY - CofA (n 8) 8-13 [25]-[49].

[108] Ibid 33 [134], 35-6 [150], 36 [153], 39-40 [167]-[168].

[110] DZY - HCA (n 13) 808 [1] (emphasis added).

[111] Ibid. See especially 809 [6]-[7], 813-14 [35]-[37].