Plaintiff v First Defendant

Evolved legal landscape for civil litigation in relation to child abuse claims

1. Victims of institutional child abuse, especially those whose abuse was historical, faced several legal impediments in seeking redress through civil litigation prior to legislative reform commencing in mid-2015. A brief summary of the evolution follows.

(a) Prior to 1 July 2015, a plaintiff who had been abused as a child had six years from attaining their majority to bring proceedings for personal injury before the limitations period expired. Absent an extension of time being granted under the provisions of the LOA Act, a defence relying on the limitations period would prevent recovery of damages. On 1 July 2015, amendments to the LOA Act introduced ss 27O and 27P, which provisions removed entirely the limitations defence for actions founded on personal injury to a person who suffered abuse whilst a child, regardless of when the abuse occurred.

(b) Prior to 1 July 2018, plaintiffs who had suffered abuse in various institutional settings faced significant difficulty in identifying a legal entity to sue. In 2007, the New South Wales Court of Appeal had delivered its judgment in Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis ('Ellis'),[6] which spawned what became known colloquially as the 'Ellis defence'. In that case, the Court of Appeal held that, at common law, an unincorporated association, such as the Catholic Church, could not be sued because, among other reasons, it did not exist as a juridical entity.[7] Institutions such as the Church invoked the Ellis defence in proceedings against them. The commencement of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) on 1 July 2018 abolished the Ellis defence. The changes implemented by that Act allow plaintiffs who suffered child abuse to sue defendants who otherwise lack legal personhood by requiring a defendant with means to be nominated to respond to the claim.

(c) In 2019, further legislative changes recognised that past settlement deeds entered between the victims of child abuse and more powerful and well-resourced institutions were potentially unfair, especially where the institution could or did avail itself of the Ellis defence or a limitations defence. The Victorian Parliament enacted legislation[8] conferring on this Court the power to set aside settlement deeds entered into before 1 July 2018[9] if satisfied that it is just and reasonable to do so.

1. Although the law reform in mid-2015 removed the limitations period for child abuse claims, such proceedings might still have been permanently stayed by a court if the delay in bringing the claim denied the defendant the opportunity of a fair trial. It was only the High Court's 2023 decision in GLJ v Trustees of Roman Catholic Church for the Diocese of Lismore ('GLJ')[10] which comprehensively dispelled any further possibility of a permanent stay being granted in child abuse cases by reason of delay in their prosecution by the victim. The Court held:

the mere passing of time, in and of itself, is no longer a potential aspect of the interests of justice relevant to the exercise of the power to permanently stay proceedings for damages for death or personal injury resulting from child abuse.[11]

1. In terms of the legal landscape at the point in time when the plaintiff settled and released her claims by the terms of the deed entered in November 2017:

(a) there was no longer any limitations period applying to her claim;

(b) the Ellis defence was still available to the first defendant; and

(c) the High Court had not yet handed down its decision in GLJ.

1. Also at that time, victims of abuse by members of the Catholic Church had the option of pursuing ex gratia compensation under the Melbourne Response. The Church established the Melbourne Response in 1996 by:

(a) appointing independent commissioners charged with investigating and making findings in relation to allegations of sexual abuse against members of the Church; and

(b) establishing a compensation panel to determine the quantum (up to a capped amount) of ex gratia compensation payable to victims.

Setting aside a settlement deed under the LOA Act: legal principles

1. Section 27QA(2) of the LOA Act allows this proceeding to be brought despite the previous settlement. This application has been made under s 27QD(2) to set aside the settlement deed entered into in November 2017. Section 27QE(1) permits the Court to set aside the deed, in whole or in part, if it is satisfied that it is 'just and reasonable' to do so. The section does not specify the matters to which the Court shall have regard in determining whether it is 'just and reasonable' to set aside.
2. The 'just and reasonable' test which appears in s 27QE(1) (and in its statutory equivalents in other jurisdictions) has been considered in a number of cases, including recently in the High Court in the case of DZY (a pseudonym) v Trustees of the Christian Brothers ('DZY').[12] The following principles can be distilled from these authorities.

(a) The burden of demonstrating it is just and reasonable to set aside the deed lies with the party making the application.[13] 'Clear and compelling reasons' are not required.[14]

(b) The words 'just and reasonable' are words of wide import.[15]

(c) The power to set aside a settlement deed is not confined to the circumstances where the limitations defence or the Ellis defence materially influenced the claimant's decision to settle.[16] The Court may apply broad principles and take account of a range of relevant factors, including such things as the relative strength of the parties' bargaining positions, the conduct of the parties, the strength of the case, whether the plaintiff was rushed and whether they had access to competent legal advice.[17]

(d) There is a need to consider both parties' interests in assessing whether it is just and reasonable to set aside the deed.[18]

(e) Whether the settlement amount was inadequate or modest, and if so, whether this is the product of the previous impediments is relevant to the exercise of the discretion.[19]

(f) Each case turns on its own facts,[20] and other cases are useful only for distilling the key principles.

(a) affidavit sworn by the plaintiff on 6 February 2025;

(b) affidavits of Nadine Daniel, solicitor for the plaintiff, affirmed on 7 February and 30 September 2025;

(c) affidavits of Richard Alexander Leder, solicitor for the first defendant, sworn on 13 May and 17 June 2025.

1. The plaintiff was called to give evidence, and she was cross-examined. Unsurprisingly, given the passing of time and the psychological injuries from which she suffers, the plaintiff has limited independent recollection of the detail of the advice she received from her then lawyers, Waller Legal, and of the events leading up to the settlement. However, she accepts the contemporaneous documents accurately record the advice given to her at the time, the ultimate conclusion of which was that she had no other viable option but to pursue the Melbourne Response. The plaintiff said that she felt her former solicitors 'steered'[21] her towards seeking redress via the Melbourne Response. Implicit in this is a sense that they failed to explain the various factors underpinning that advice in sufficient detail. However, there is a discussion of the factors or reasons for that conclusion in the contemporaneous written records of the advice given to the plaintiff which have been made available from the Waller Legal file. I consider those documents to provide reliable evidence of the advice she was, in fact, given and of the events leading up to settlement.
2. In her affidavit the plaintiff deposes to her sexual abuse by Murray on separate occasions in 1975 and 1978. For a long time the horrific consequences of the abuse, and her memories of it, were repressed, only being triggered in around 2011 and 2012 upon learning of the sexual abuse of her own daughter by her paternal grandfather and also after hearing Murray's voice on the radio.
3. The plaintiff deposes that she first had contact with Waller Legal in late 2013, when she sought advice about whether her father-in-law could be sued in respect of his abuse of his grand-daughter. At some stage after that initial contact she disclosed to Waller Legal her own abuse by Murray as a child. During an introductory meeting in November 2014, the plaintiff sought advice and assistance from Waller Legal on several topics, namely:

(a) the possibility of her daughter suing her father-in-law;

(b) the possibility of the plaintiff and her husband pursuing secondary victim claims for the offending against their daughter;

(c) the abuse the plaintiff endured by Murray;

(d) the Melbourne Response scheme; and

(e) pursuing a claim against Murray.

File notes taken by the lawyers in attendance at this meeting are exhibited to Ms Daniel's first affidavit.

1. In mid-2015, a solicitor from the firm of Waller Legal started working on the plaintiff's file in relation to her abuse by Murray. The plaintiff deposes that right from this point in time she understood that Waller Legal would help her pursue compensation through the Melbourne Response, having received advice from them that 'this was the only viable option to get compensation from the church'.[22] The plaintiff relied on that advice.[23]
2. Throughout 2015 and 2016, Waller Legal worked with the plaintiff in preparing her statement for submission to the then Independent Commissioner of the Melbourne Response, Mr Jeffrey Gleeson QC. On 2 June 2016, Mr Gleeson interviewed the plaintiff. A copy of the transcript of that interview is exhibited to the first affidavit of Ms Daniel. On 15 December 2016, Mr Gleeson wrote to Waller Legal stating:

I am satisfied that [the plaintiff] was sexually abused by Monsignor Murray on two occasions: one in approximately 1975 and one in approximately 1978, substantially in the circumstances described by her in her statement dated 19 February 2016.[24]

Thereafter, the plaintiff made application for an ex gratia compensation payment from the Archbishop of Melbourne in relation to the findings of the Independent Commissioner.

1. The plaintiff gave evidence in cross-examination that she spoke with Waller Legal in July 2016 about making a secondary victim claim in the VOCAT in relation to the abuse of her daughter. The file note of this particular conference records the plaintiff's instructions that she wished to apply for compensation for 'LOE', being loss of earnings, within the VOCAT claim.[25] The plaintiff gave evidence that she couldn't recall discussing loss of earnings with Waller Legal at all, but she accepts she might have done in relation to the VOCAT claim, although it was 'probably fleeting'.[26] No such claim was ever pursued in the VOCAT. She was, however, adamant in her cross examination that loss of earnings was 'never'[27] discussed in relation to her potential claims against the Church regarding Murray's abuse.
2. The plaintiff deposes that in early 2017 she asked Waller Legal what her options were if she was not happy with the amount of compensation that might be offered by the Melbourne Response. She discussed this with her solicitor on 6 March 2017 during a 23 minute phone call. Her solicitor's detailed file note of the call is an exhibit to her affidavit. The contents of the file note are important in this case, and worth setting out fulsomely:

[The plaintiff] enquired as to her options if she wasn't satisfied with the offer from Melbourne Response. She noted the Seeking Redress form and the part that discusses civil claims.

I explained that at the time we advised her about Melbourne Response, we also conducted an assessment of her claim. I explained that we were reluctant to advise her to embark on a litigated course for the following reasons.

I advised that there are significant legal and practical impediments to a common law claim.

I explained that the Melbourne Archdiocese are not an incorporated entity. Therefore, they are not an entity that is capable of having legal proceedings issued against it. I noted that this is sometimes colloquially known as the Ellis Defence.

I explained that we have a select few cases in which we have requested that the Archdiocese nominate an entity that we can sue. I indicated that, to date, the Archdiocese have not been helpful in this regard.

I noted that the offender, Murray, is deceased. I also noted that the Archbishop at the time, Frank Little, is also deceased.

[The plaintiff] said that some of the victims in Ballarat have had some success. I explained that the Ballarat Diocese is a different defendant.

I advised that [the plaintiff]'s claim is not out-of-time. I confirmed that as of 1 July 2015 the statutory limitation period on her case was abolished.

However, the Court retains a common law discretion to strike out cases in which the defendant can show that a trial would be unfair and prejudicial. This might be because witnesses have passed away or cannot be located or documents have since been destroyed or cannot be located.

I also explained that we are yet to obtain any evidence to suggest that the Archdiocese knew or ought to have known that Murray was a risk to [the plaintiff]. We do not have any evidence of any prior complaints. I explained that it would be difficult to establish a negligence argument in these circumstances.

I explained that the Melbourne Archdiocese have not, in my experience, showed a willingness to engage in out of court discussions outside of the Melbourne Response process.

In view of the above matters, a common law action would likely be expensive and protracted.

[The plaintiff] confirmed her instructions for us to proceed with the Melbourne Response claim. I noted that the cap is now $150,000.00.

...

I said that we can discuss these matters again once an offer has been made.

I advised that until she signs a Deed of Release her rights are unaffected by this process.[28]

The file note records the plaintiff's instructions, in light of the advice given, to pursue compensation under the Melbourne Response. The plaintiff deposes that after this call 'the impression [she] was left with was that there was no viable option for [her] to get compensation from the church, other than the Melbourne Response.'[29] When asked about this phone call in cross-examination, the plaintiff recalled receiving advice that:

(a) the Ellis defence would be an impediment to her claim and that the Archdiocese had not been co-operative in nominating any defendant to sue;[30]

(b) her claim was not out of time;[31]

(c) despite not being out of time, the Court has a discretion to strike out proceedings where the defendant can show the trial might be unfair, such as where documents had been lost or key witnesses (like Murray) had died.[32]

By contrast, in her cross-examination the plaintiff said she could not recall being advised during this phone call that it would be difficult to establish negligence because her lawyers had not been able to find evidence that the Catholic Church knew about Murray's abuse.[33] However, she accepted that if this was recorded in the file note it is likely the advice was given to her during the call.[34] She also said that she understood she would need to be able to establish negligence and that a common law claim would likely be protracted and expensive.[35]

1. On 18 September 2017, the plaintiff's compensation claim went before the Melbourne Response compensation panel. In advance of that hearing, the plaintiff met with her legal representatives. The file note of this meeting is exhibited to Ms Daniel's first affidavit. It is difficult to decipher the handwriting, but the plaintiff accepted the most relevant part of the file note likely reads:

Provided general advice regarding common law claim.

→ we would be reluctant to advise [the plaintiff] to pursue a CL claim at this stage

→ perpetrator deceased

→ no evidence found that suggests Archdiocese were on notice

→ CL discretion to strike out proceedings

Acceptance of offer through MR is full and final - cap of $150,000.00[36]

When cross-examined about this meeting, and in particular the contents of the file note which appear to record a discussion about the potential difficulties in establishing negligence in a common law claim, the plaintiff had little independent recollection of it. However, she accepts that the file note likely reflects what was discussed at the meeting. When asked whether the need to establish negligence was one of the factors that 'played on [her] mind when accepting ultimately the [Melbourne Response] offer',[37] the plaintiff answered:

I can't really remember at the time. My mind was all over the shop.[38]

1. On 2 November 2017, the plaintiff's then solicitor called her to discuss an offer of $150,000 compensation received from the Melbourne Response. The plaintiff recalled the contents of the call as recorded in the solicitor's file note made that day, save that she cannot recall whether she went through the terms of the deed of release on that or another occasion.[39] She could not recall being advised that she would be agreeing to a release of current or future claims, though she said that she understood that to be a consequence of a settlement.
2. On 21 September 2017, the plaintiff contacted 'In Good Faith', seeking its advice regarding her claim through the Melbourne Response. She had also spoken to them before receiving the offer of compensation. The plaintiff cannot recall the specific discussions she had with them on either occasion. However, she deposes that they left her with the same impression as Waller Legal, that is, there was no other viable option other than the Melbourne Response.[40]
3. After her discussions with her lawyers and In Good Faith, the plaintiff decided to accept the compensation offer. The plaintiff deposes that she made an appointment with Waller Legal for 17 November 2017. She recalls signing a document titled 'instructions to settle' on that day, before signing the settlement deed. Again the parts of the 'instructions to settle' document are important and so are extracted in full below.

...

I understand that this brings to an end all claims to compensation in relation to this event once and for all, subject to possible future law reform.

It has been explained to me that;

(a) On 1 July 2015, the Limitations of Actions Amendment (Criminal Child Abuse) Act 2014 (Vic) commenced ·operation. This legislation abolished the limitation period for all relevant child abuse common law claims regardless of the time or context of the alleged abuse. Therefore, any potential claim that I may have is not statue barred.

Notwithstanding the removal of the limitation period, in some cases where there has been a long delay in commencing proceedings, this can impact on the evidence that is available. A potential defendant may apply to the court to have the proceeding struck out or stayed on the basis that the passage of time has created significant prejudice and a fair trial would not be possible in the circumstances.

(b) The law, at present, does not recognise the Catholic Church, as a legal entity. This means that legal proceedings cannot be filed against it. In the absence of a legal entity that is capable of being sued, or a nominated entity which agrees to be sued, I am unable to name a Defendant against whom I can establish a cause of action in negligence. I understand that this position may change in the future as the result of law reform. I further understand that Archbishop Denis Hart has recently indicated that he may nominate himself as a defendant.

(c) In 2013, the Victorian Parliamentary Inquiry ("the Parliamentary Inquiry") into the Handling of Child Abuse by Religious and Other Organisations handed down recommendations for law reform in Victoria, including changes to the limitation period and the legal identity of religious defendants;

The Parliamentary Inquiry has recommended establishing an independent, alternative avenue for justice and it recommends that victims who have previously resolved their claims should have an opportunity to have their claims revisited through the proposed new avenue[.]

The Victorian parliament may introduce law reform in the future as a result of the Parliamentary Inquiry. This may improve the prospects of any legal claim I may have in the future. I understand that if I resolve my claim now, I may not receive the benefit of any of these possible future developments[.]

(d) On 4 November 2016, the Australian Commonwealth Government announced that it will establish a federal redress scheme for survivors of institutional child sexual abuse.

We understand that the Intention of the Australian government is to have the scheme commence and operate from early 2018 for a period of ten years. We also understand that the scheme will offer financial compensation up to $150,000.00 and provide access to support services.

No details have yet been released in relation to who will be eligible to access the scheme or whether those who have settled claims in the past will be able to claim further compensation from the scheme.

Further, we note that institutions and states must 'opt-in' to participate in the scheme. To date, there has been no indication as to which institutions or states will elect to participate.

In view of the above, I may choose to await further developments in relation to the scheme or I may make an informed decision to settle my matter now.

(e) I have been advised that it is an option for me to wait and see what changes to the law might be introduced, and to ascertain what benefits that might bring for my case.

I have been provided with legal advice based on the current state of the law. My legal representatives cannot provide legal advice based on possible changes to the law in the future.

I understand that I am free [to] participate in the Royal Commission should I choose to do so. Further, I am free to report any matter to the police at any time should I choose to do so. Nothing about the settlement or resolution of my claim prevents me from doing these things.[41]

The plaintiff accepted, under cross-examination, that it was likely she read the 'instructions to settle' document in full but she said she 'can't remember it'.[42] She explained:

That time was just a blur for me and signing documents, at that time, my mind was just all over the shop.[43]

1. The plaintiff signed the settlement deed on 17 November 2017. She gave evidence in cross-examination that she understood by accepting the offer she was agreeing to terms that would fully and finally resolve her claims and that she could not later sue for damages.

1. Having regard to all of the circumstances of this case as described below, I have concluded that it is just and reasonable for the whole of the settlement deed to be set aside.

1. I am satisfied that there is no prejudice to the first defendant arising from the elapse of time or the loss of evidence of a sufficient nature or degree to weigh against setting the deed aside. As the Court held in GLJ, in historical abuse cases, the passing of time and the inevitable fading of memories and the loss of documents and other evidence are 'properly to be understood as routine and unexceptional sequalae of the harm caused by the [abuse]'.[44] Of course, the first defendant's legal rights will be disturbed by losing the benefit of the releases given under the terms of settlement, however, that is the prejudice that necessarily results where the set aside power is exercised because it has been determined that it is just and reasonable to do so.

1. The plaintiff recalled receiving the advice, recorded in the 6 March 2017 file note, that the Ellis defence was one of the legal and practical impediments to her common law claim.[45] Although she cannot specifically recall it, the same advice was given in the 'instructions to settle' document she signed on 17 November 2017. This particular impediment is given primacy in the advice recorded in each of these documents, suggesting a significance that might explain the plaintiff's actual recollection of it being discussed with her on 6 March 2017. The plaintiff also recalled being told that, in a select few cases, Waller Legal had requested the Catholic Church nominate a defendant their clients could sue and that 'the Archdiocese have not been helpful in this regard'.[46] I am satisfied the plaintiff believed that the Ellis defence was a substantial impediment to her claim.
2. I reject the first defendant's submission that because Waller Legal went on, after addressing the Ellis defence in the 6 March 2017 phone call, to address the plaintiff's prospects, the solicitors did not genuinely regard the Ellis defence to be an obstacle.[47] I regard the advice given by Waller Legal, in the circumstances in which it was given, that is by telephone, as an attempt to identify comprehensively the separate impediments to her claim. There is nothing in the call file note to suggest that any subsequently identified impediments were only raised with the plaintiff because the obstacles addressed earlier in the call, such as the Ellis defence, were not as profound. If anything, the order in which the points were made to the plaintiff would suggest that primary significance was being given to the first item discussed, i.e. the Ellis defence. Notably, the prospects of success of the plaintiff's claim are not addressed in any detail in the 'instructions to settle' document signed on the day of the settlement. Its absence from that advice completely undermines this submission.
3. The first defendant argues that, for some time prior to entry into the settlement deed, it had a clear and publicly known policy of not taking the Ellis defence.[48] It submits this policy was also known to Waller Legal. Among other things, the defendant adduces the following evidence in support of the existence of such policy:

(a) the undertaking of then-Archbishop Hart by his witness statement given to the Royal Commission to volunteer himself as defendant in civil proceedings against the Archdiocese of Melbourne;[49]

(b) the media release dated 22 May 2015 issued by the Truth Justice and Healing Council titled 'Senior Church leaders commit to no Ellis Defence';[50] and

(c) the Truth Justice and Healing Council's Guidelines ('Guidelines'), which commenced on 1 January 2016, for Church authorities in responding to civil claims for child abuse.[51]

1. The plaintiff submits that the cited documents reveal nothing other than vague statements of intention or aspiration. In my view, the first defendant is not assisted by the material upon which it relies to establish that, as a matter of fact, it would not rely on the Ellis defence in the plaintiff's case because:

(a) much of the material contains statements which are no more than aspirational in nature, speaking of an intention to co-operate and an intention not to rely on Ellis;

(b) the Guidelines do not refer to the Ellis defence expressly, instead stating, somewhat ambiguously, that the Church 'should' assist the claimant 'to identify the correct defendant to respond to the legal proceedings' and in the same document stating that the Guidelines 'are not intended to prevent Church authorities from acting properly to defend claims that they consider should be defended';[52]

(c) although on 6 March 2017, that is over a year following the introduction of the Guidelines, Waller Legal expressly told the plaintiff that it had, in other cases, asked the Archdiocese to nominate a defendant, they further informed the plaintiff that, based on those experiences, the Archdiocese 'had not been helpful in that regard', an experience in stark contrast to the stated intention of the policy;

(d) in the 'instructions to settle' document dated 17 November 2017, Waller Legal informed the plaintiff that it had an understanding that Archbishop Hart had 'recently indicated that he may nominate himself as a defendant', but they could be no more definitive;

(e) the first defendant did not nominate any person or entity, which would be indemnified, to be named as defendant to any claim that might be brought by this plaintiff, nor did it indicate in any other way it would not rely on Ellis in the event the plaintiff issued a common law claim;

(f) the Ellis defence remained in existence and available to the first defendant until 1 July 2018.

1. Overall, the plaintiff's impression of Waller Legal's advice was that there was no other viable option for her other than to pursue the Melbourne Response and they steered her in that direction. In giving advice on 6 March and 17 November 2017, the written records of which I consider to be reliable, Waller Legal discussed the factors which informed that ultimate conclusion. In each advice they give primacy to the prospect that the Church would rely on the Ellis defence in resisting any claim the plaintiff might make. Given this prominence and the fact the plaintiff had an independent recollection of receiving specific advice about this factor (which was not the case for all of the factors addressed in the advices), I infer that this factor had a material influence on her decision to accept the compensation offered to her through the Melbourne Response.

1. The plaintiff conceded in her evidence that she knew and understood, based on her advice, that the limitations defence did not apply to her claims against the Church given the legislative changes made prior to her entry into the settlement deed. That advice is confirmed by the contents of the 6 March 2017 file note, which records the solicitor explaining the plaintiff's claim was 'not out-of-time'[53] and the 'instructions to settle' document dated 17 November 2017, which records the plaintiff's acknowledgement that 'any potential claim that I may have is not statute barred'.[54] Accordingly, the limitations defence was not a factor that influenced her decision to accept the settlement.

1. The contemporaneous documents show that Waller Legal advised the plaintiff prior to her entry into the settlement deed of the risk that any common law proceeding she issued would be stayed on application by the Catholic Church given the passage of time and because Murray and another key witness were dead. Prior to the decision in GLJ in 2023, such advice was soundly based. The plaintiff recalled receiving this advice on 6 March 2017, but not on the two other occasions on which she received it. When asked, she could do no more than suppose that she weighed this specific factor in her mind at the time she decided to accept the compensation amount.
2. It is clear from the written file notes of 6 March and 18 September 2017, and the 'instructions to settle' document from November 2017, that the prospect of a permanent stay was one of the factors supporting the ultimate conclusion in Waller Legal's advice that there was no other viable option for the plaintiff to pursue other than the Melbourne Response. In accepting that conclusion, as she ultimately did, I am satisfied the plaintiff was influenced by this specific factor in deciding to execute the settlement deed. That she could recall this factor being discussed with her on 6 March 2017 suggests it had some primacy in her mind.

1. The first defendant submits that the plaintiff had (and still has) low prospects of establishing negligence and this was the primary factor which influenced her decision to settle. The 6 March 2017 file note records that the plaintiff was advised of the following risks in establishing her common law claim:

the offender, Murray, is deceased. ... the Archbishop at the time, Frank Little, is also deceased. ... we are yet to obtain any evidence to suggest that the Archdiocese knew or ought to have known that Murray was a risk to [the plaintiff]. We do not have any evidence of any prior complaints. I explained that it would be difficult to establish a negligence argument in these circumstances.[55]

1. Waller Legal gave additional prospects advice at the meeting with the plaintiff held before she appeared before the compensation panel on 18 September 2017.[56] That file note records that Waller Legal was 'reluctant' to advise the plaintiff 'to pursue a [common law] claim at this stage'[57] for the reasons that the perpetrator was deceased, there was no evidence that the Archdiocese was on notice of the abuse and because of the prospect of the claim being struck out. The prospects advice given by Waller Legal was necessarily preliminary; it simply anticipates the risks inherent in the claim as far as they could be identified at that time, and prior to there being any process of discovery or interrogation. Notably, there is no detailed discussion of the plaintiff's prospects of success, nor of any of the specific risks previously identified other than as they related to the prospect of strike out, in the 'instructions to settle' document signed shortly before the deed was executed.
2. The plaintiff accepted during cross examination, despite not recalling it, [58] that she had been advised about the need to establish negligence, and that it would be difficult, including because the perpetrator Murray was dead and there was no evidence at that time that the Church was on notice of his abuse.[59] She also gave evidence that she understood it would be an expensive and protracted process.[60]
3. Given the inclusion of the prospects advice and identification of the risks faced by the plaintiff in establishing her claim in Waller Legal's advice on 6 March 2017, which expressed the ultimate conclusion there was no other viable option, and since similar advice was repeated in the conference prior to the plaintiff appearing before the compensation panel, I infer that these risks would have featured in the plaintiff's calculus when she determined to accept the settlement offer. She was aware of the advice having been given. To the extent it influenced her, it weighs against granting the relief. Overall, I am not satisfied, however, that this factor was given equivalent significance in Waller Legal's various advices, nor that it assumed the same degree of significance in the plaintiff's mind, such that it overwhelmed or dominated the influence of other factors, when she decided to accept the settlement offer. I do not consider that it was the primary reason for the settlement as the first defendant contends.

1. The first defendant submits that the settlement amount, being $150,000 was not manifestly inadequate at the time the deed was executed. It submits that it was within the same general range of awards of general damages at the time.
2. At [23] of the first defendant's submissions filed on 17 June 2025, the first defendant submitted in relation to the adequacy of the settlement amount:

Further, owing to the liability risks specific to this case, and to matters particular to Plaintiff's unique medical and personal history (including inter alia the 2012 breakdown of her mental health after learning of her daughter's abuse in 2011), any potential common law settlement would have been appropriately discounted and not treated as a pure assessment.[61]

Curiously, the underlined portion was removed from the first defendant's written submissions when resubmitted to the Court in advance of the hearing, the written submissions having been updated to include Court Book references. If it hasn't been abandoned, as its omission from the updated submissions would suggest, the contention appears to be that an assessment of the quantum of plaintiff's claim, would have been heavily discounted because, as a distinguishing feature of her case, her mental health breakdown was caused by learning of the abuse of her daughter in 2011 or 2012, rather than her own abuse.

1. Prior to offering compensation under the Melbourne Response, the first defendant commissioned a report from Dr Brann, which was given in April 2017. In that report, Dr Brann diagnosed the plaintiff as suffering from post-traumatic stress disorder and dissociative disorder 'directly attributable to'[62] the alleged abuse by Murray. Dr Brann's report observed that the plaintiff's daughter's abuse was a powerful trigger for her memories and added to her distress.[63] Dr Brann's supplementary report confirms that the plaintiff's injuries have been caused by her own abuse, and exacerbated by learning of the abuse of her daughter,[64] not the other way around as the first defendant contends. It follows that the plaintiff was not in any unique or distinguishable position from other plaintiffs who have suffered psychiatric harm from sexual abuse so as to justify a significant discount in an assessment as submitted by the first defendant.
2. The Independent Commissioner found that the plaintiff's abuse occurred as she alleges. The compensation amounts payable under the Melbourne Response were capped at $150,000. Clearly, the compensation panel regarded the plaintiff's claim and her claimed injuries as being sufficiently grave so as to be deserving of the maximum compensation. Furthermore, the medical evidence establishes that the abuse has had a very significant impact on the plaintiff's life since her delayed memories were triggered, in particular, that she has been 'severely psychiatrically unwell' and is 'severely impaired in every aspect of her existence'.[65] In my view, if the plaintiff is successful in her claim at trial, she will likely receive considerably more than $150,000 in damages. That sum is close to half of the damages awarded in the cases cited by the defendant as exemplars of the range of general damages payable in cases from the time. There is evidence that the plaintiff's ability to work has been impacted, and for the reasons below, I am satisfied that the plaintiff will be entitled to pursue pecuniary loss damages.
3. The plaintiff accepted the $150,000 compensation having been advised by Waller Legal that, due to the noted obstacles including the Ellis defence, compensation under the Melbourne Response represented the only viable option at the time. She did not believe she could pursue a common law claim. That advice was confirmed by In Good Faith. That the inadequacy of the settlement amount paid to the plaintiff as part of her settlement reflected the legal obstacles before her weighs in favour of setting aside the deed.

1. It is submitted by the first defendant that a 'measured, considered decision'[66] was made not to pursue pecuniary loss damages, such that the settlement deed should not be set aside in so far as it compromises such a claim. I reject that submission. There is no evidence before the Court that the plaintiff considered, sought advice about and abandoned a pecuniary loss damages claim against the first defendant. The submission relies on a confabulation of evidence found on the plaintiff's legal file about the consideration of loss of earnings as a part of a secondary victim VOCAT claim arising out of the abuse of her daughter. It overlooks that the plaintiff did not pursue any damages in respect of her claim based on Murray's abuse - she sought an ex gratia payment of compensation under the terms of the Melbourne Response, a scheme that makes no provision for economic loss, and which, at the time, capped the maximum compensation payable at $150,000. There is no discussion in any of the advice provided to the plaintiff about her potential common law claim concerning heads of damage, nor is there any attempted calculation of damages or advice about quantum. The plaintiff credibly denied the proposition when put to her by the first defendant, stating that the issue of loss of earnings may have been discussed fleetingly with regard to her VOCAT compensation application in respect of her daughter's abuse, but it was 'never'[67] discussed in relation to her own abuse claim. There is, accordingly, no cogent evidence that the plaintiff chose not to pursue a claim for pecuniary loss against the first defendant because she was told and believed it was meritless.

Other factors: inequality of bargaining position, the fragile mental state of the plaintiff

1. Despite being represented by experienced and competent solicitors, I consider that the plaintiff, like others in her position, was not in an equal bargaining position with the first defendant. However, the settlement was not the outcome of any bargain struck between the parties - it was an offer to pay the maximum compensation then available under the Melbourne Response, and its quantum was determined by the compensation panel. I do not consider any inequality in bargaining position influenced the entry into the settlement deed.
2. The plaintiff's submission made by Counsel, that she would have been in some way overawed by the Church having been raised within it, was not supported by any evidence. Whilst there was no contention that the plaintiff lacked capacity at the time of entry into the deed, I accept that she was likely adversely affected by her profound psychological injuries. So much is clear from her evidence that at the time her mind was 'all over the shop'.[68] That fragile mental state has clearly affected her memory of the events. However, I do not consider that it influenced her acceptance of the settlement.

1. It is clear in this case that, at the time of settlement, the plaintiff faced (and believed she faced) significant legal barriers to her claim arising from her sexual abuse as a child. The prospect of the Church relying on the Ellis defence was a material factor, but additionally, she faced the risk of the Church seeking a permanent stay of her proceeding, if issued, because of the passage of time and the resultant loss of evidence, including the death of key witnesses. Whilst I accept that the risks that faced her in establishing negligence also influenced her decision to settle, that was not the primary or dominant consideration. Having regard also to the inadequacy of the settlement sum, I consider that it is, in all the circumstances, just and reasonable to set aside the deed.
2. I will order that the prior settlement deed be set aside in its entirety. By her summons, the plaintiff seeks that the costs of her application be costs in the cause and I will so order.

[1] Further amended writ amended pursuant to the order of the Honourable Associate Justice Ierodiaconou of 28 April 2025 filed 29 April 2025, [8]-[9].

[2] Affidavit of Nadine Daniel affirmed 7 February 2025, [61], Exhibit 'ND Exhibit Bundle', 218-224 ('First Daniel affidavit').

[3] Being the nominated proper defendant for the Archdiocese of Melbourne.

[4] Filed on 30 August 2024. By its defence the first defendant also denies it is vicariously liable for the abuse, and denies it was negligent.

[5] Made on summons filed on 26 February 2025.

[6] [2007] NSWCA 117; (2007) 70 NSWLR 565 ('Ellis').

[8] Children Legislation Amendment Act 2019 (Vic) inserting s 27OA and ss 27QA to 27QF into Division 5 of Part IIA of the Limitation of Actions Act 1958 (Vic) ('LOA Act').

[9] Initially, the power to set aside applied to deeds entered prior to 1 July 2015, however, that power was extended by further legislative amendment in 2020 contained in the Justice Legislation Amendment (Drug Court and Other Matters) Act 2020 (Vic) s 44.

[10] [2023] HCA 32; (2023) 280 CLR 442 ('GLJ').

[12] [2025] HCA 16; (2025) 422 ALR 372 ('DZY').

[14] Mooney v Trustees of the Christian Brothers [2025] VSC 602, [13]; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328; (2020) 62 VR 234, 262 [97], [98] ('WCB').

[17] See generally Explanatory Memorandum, Children Legislation Amendment Bill 2019 (Vic) 17; DZY [27]-[28], [37].

[20] Warrick (a pseudonym) v Trustees of the Christian Brothers [2025] VSC 520, [76].

[21] Transcript of Proceedings, Mitchell v Comensoli (Supreme Court of Victoria, S ECI 2024 01132, Goulden AsJ, 17 October 2025) T13.29; T28.20 ('Transcript').

[24] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 161-166.

[25] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 151.

[28] Plaintiff's affidavit, Exhibit 'SM Exhibit Bundle', 12-13.

[35] Transcript T15.1-15.3; T15.23-T15.28.

[36] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 195-196.

[38] Transcript T18.10-T18.11, though she then conceded it may have been a reason but she just couldn't recall (Transcript T18.12-T18.15).

[40] Plaintiff's affidavit [48]; Transcript T20.30-T21.5.

[41] Plaintiff's affidavit, Exhibit 'SM Exhibit Bundle', 14-16.

[46] First Daniel affidavit [44], Exhibit 'ND Exhibit Bundle', 170-171.

[47] First defendant's submissions filed 17 June 2025, [11].

[48] The evidence in support of this policy is given in the affidavit of Richard Alexander Leder sworn on 13 May 2025, [44]-[55], and within the documents exhibited thereto ('Leder affidavit').

[49] Leder affidavit, Exhibit 'RAL-1', 1003-1013.

[50] Leder affidavit [48], Exhibit 'RAL-1', 989-990.

[51] Leder affidavit [52], Exhibit 'RAL-1', 995-996.

[52] The use of the word 'correct' defendant is ambiguous, it tends to suggest identification of a defendant involved in the abuse as opposed to nomination of a legal entity for the purpose of being sued. See Guidelines as exhibited to the Leder affidavit, Exhibit 'RAL-1', 995-996.

[53] Plaintiff's Affidavit, Exhibit 'SM Exhibit Bundle', 12-13.

[54] Plaintiff's Affidavit, Exhibit 'SM Exhibit Bundle', 14-16.

[55] Plaintiff's affidavit, Exhibit 'SM Exhibit Bundle', 12-13.

[56] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 195-196.

[57] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 195-196.

[58] Transcript T14.18-T14.19; T14.20-T14.24; T18.5-T18.11.

[61] First defendant's submissions [23].

[62] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 193.

[63] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 193.

[64] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 249.

[65] First Daniel affidavit, Exhibit 'ND Exhibit Bundle', 193.

[66] First defendant's submissions [19].