(1) the recitation of the facts, the relevant statutory provisions and the reasons of the associate judge;[108]

(2) the analysis as to the applicable standard of appellate review;[109]

(3) the summary of this Court's reasons in WCB and, in particular, the observation that s 27QE of the Act does not prescribe matters which the court should have regard to in determining whether to set aside a settlement agreement;[110] and

(4) the ultimate outcome of the application and the appeal and the orders proposed by the majority.

1. However, in light of the facts in this case, I do not consider it is necessary to conclude that the exercise of the court's power under s 27QE is fettered such that it is doubtful that any cogent ground would exist to conclude it was just and reasonable to set aside a settlement agreement if no finding was made that either the limitations period or the Ellis defence had a 'material impact' on the claimant's decision to settle his or her claim and/or was a 'leading' factor in this decision.[111]
2. For my part, I am not convinced that the exercise of the court's power is so fettered: rather, I tend towards the view that, in light of the language used in s 27QE, the exercise of the power under that section will depend upon all the relevant circumstances. My reasons may be shortly stated.
3. First, I agree with the majority at [109] that the mischief to be remedied by at least ss 27QD-27QE appears to be the existence of a potentially unfair or inadequate settlement agreement between victims of institutional child abuse and defendant organisations, as a result of previous legal barriers, in particular the limitations period and the Ellis defence. I will refer to these matters as the 'previous legal barriers'. This mischief is reflected in the Second Reading Speech made by the Minister for Child Protection, the Hon Luke Donnellan, in relation to the Children Legislation Amendment Bill 2019 (the 'Second Reading Speech' and the '2019 Bill'), where the Minister referred to legislative reforms addressing the previous legal barriers and amending the law concerning the duty of care of organisations, concluding:

While these reforms have removed significant barriers to civil litigation for survivors of institutional child abuse, they do not deal with the unjust product of previous barriers, which led to survivors accepting inadequate settlements and releasing institutions from future liability.[112]

1. It is for this reason that the relevant sections of the Act, and particularly ss 27QD-27QE, were introduced.
2. Second, in drafting s 27QE the Parliament did not limit the exercise of the court's power (or access to the s 27QE remedy) to circumstances where the claimant's decision to enter the agreement had been materially impacted by one or both of the previous legal barriers. Rather, the Parliament expressly provided that the exercise of the power to set aside a settlement agreement was to be exercised if the court is satisfied it is 'just and reasonable to do so'. Those words are of very wide import, and I am reluctant to limit their operation.[113] I consider that the court may evaluate a multiplicity of potentially relevant factors to reach the ultimate determination of whether it is 'just and reasonable' for a particular agreement to be set aside.
3. Third, the breadth of the statutory text is reinforced by the extrinsic materials. The Explanatory Memorandum to the 2019 Bill says the following in relation to s 27QE:

It is in the court's discretion to determine what is just and reasonable according to the circumstances of each case, allowing the court to apply broad principles and take account of any relevant factors. This may include, for example, the relative strengths of the parties' bargaining positions, the conduct of the parties and the amount of the settlement.[114]

1. So too, in the Second Reading Speech, the Minister said:

In determining what is just and reasonable a court can take into account a number of considerations, informed by the Royal Commission ... Where survivors faced significant disadvantage in pursuing compensation due to legal barriers such as the statute of limitations, the Ellis defence, or the deficiency of the law regarding the duty of care of organisations, settlements entered into should be set aside in the interests of justice, to allow victims to obtain compensation which is deemed adequate by today's standards.

It is not necessary that the existence of the limitation period be the predominant reason as to why the agreement was entered into. There may be a number of reasons that a plaintiff entered into such an agreement, including but not limited to unequal bargaining power, barriers to identifying a proper defendant, feelings of guilt and shame compounded by the burden of giving evidence and being subject to cross-examination, or the behaviour of the relevant institution.[115]

1. I note that while the Second Reading Speech addressed the problems imposed by the limitations defence and Ellis defence, the comments which I have emphasised above focus only on the limitations period. This is understandable given that the 2019 Bill only allowed settlement agreements to be set aside if entered into prior to 1 July 2015, when the limitations period for child abuse was abolished. This is evidenced by the original definition of 'previously settled cause of action' in s 27OA, which was limited to settlement agreements entered before 1 July 2015.[116] It was only from 8 December 2020 that the definition of 'previously settled cause of action' was amended, which extended the availability of the remedy to agreements entered into before 1 July 2018[117] (i.e. to accord with the commencement of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 which abolished the Ellis defence on 1 July 2018).
2. In this legislative context, I accept that the dates chosen by Parliament (which relate to the times when the previous legal barriers were removed) are central to the availability of a remedy under s 27QE.
3. As a result, I accept that the impact of the previous legal barriers is likely to be relevant in determining whether it is just and reasonable to set aside a settlement agreement in whole or in part under s 27QE(1). I also accept that, in an ordinary case, one of the two legal barriers would play some part in determining whether it is just and reasonable to set aside a settlement agreement to which this section applies.
4. However, based on the facts and submissions in this case, I do not consider it is necessary to conclude that the claimant needs to establish that one or other of the previous legal barriers had a 'material' impact on the claimant's decision to settle his or her claim or that either was a 'leading' factor before the court can exercise the power under s 27QE. As to the submissions, I am not satisfied that the Christian Brothers ultimately asked the court to reach such a conclusion, in light of counsel's oral submissions.[118] As to the facts, I will address them briefly below.
5. In any event, as set out above, I tend towards the view that the exercise of the power under s 27QE of the Act will depend upon all the relevant circumstances.
6. It is now appropriate that I deal with a summary of the facts. In summary, in 2021, DZY sought to set aside the 2012 and 2015 deeds pursuant to ss 27QD and 27QE of the Act. The Christian Brothers consented to setting aside the deeds in part i.e. so as to allow DZY to bring his claim for general damages but not so as to allow DZY to now pursue a claim for economic loss. In doing so, the Christian Brothers conceded that it was just and reasonable to set aside the deeds for general damages given that the amount of the settlement sum may have been affected by the previous legal barriers.[119] However, the Christian Brothers contended that it was not just and reasonable to set the deeds aside to allow DZY to bring an economic loss claim in circumstances where DZY had decided, before the deeds were entered into, not to make such a claim, which was due to his concerns about needing to repay his Centrelink benefits. As a result, each of the deeds contained an acknowledgement that DZY did not allege that he had suffered economic loss, that he made no demand for it as part of his claims and that each deed fully extinguished his rights against the Christian Brothers.
7. I agree with the majority that, given the correctness standard applies, the evidence did not allow the court to be satisfied it was just and reasonable to set aside the 2012 deed or the 2015 deed insofar as they released the Christian Brothers from an economic loss claim in circumstances where:

(1) there was no direct evidence from DZY to the effect that he decided not to pursue any economic loss claim due to the Ellis defence or the limitations period; rather, the evidence was that he did not include the economic loss claim due to concerns about repayment of Centrelink benefits;[120]

(2) notwithstanding there was general evidence that DZY was affected by the consumption of alcohol and anxiety at the settlement conference in 2012 and later in 2015:

(a) at all relevant times DZY was legally represented (including at times by counsel) and his legal advisors provided advice in relation to the deeds;[121]

(b) DZY was not rushed to sign either of the deeds;[122]

(c) DZY's legal advisers certified that DZY appeared to understand the purport and effect of each deed;[123] and

(d) DZY's statement that he had 'no choice' but to settle was not related to any conduct of the Christian Brothers or his decision not to pursue an economic loss claim: if anything, it appears to relate to his acceptance of the settlement sum for his general damages claim.[124]

1. As a result, I would grant leave to appeal, allow the appeal and make the orders proposed by the majority.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

[2] A judge of the trial division ordered that hearing and determination of the application be referred to the associate judge pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015.

[3] DZY (a pseudonym) v Trustees of the Christian Brothers [2023] VSC 124 ('Reasons').

[4] Limitation of Actions Act 1958, ss 5, 23 (the 'Act'). That period had long expired for DZY by 2012.

[5] Ibid s 23A.

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

[7] The Act, s 27P, inserted by the Limitation of Actions Amendment (Child Abuse) Act 2015.

[8] Legal Identity of Defendants (Organisational Child Abuse) Act 2018, ss 7-8.

[9] Amendments to pt IIA of the Act inserted by the Children Legislation Amendment Act 2019, in particular ss 27QA-27QF.

[10] (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 ('House').

[11] [2023] HCA 32 ('GLJ').

[12] [1979] HCA 9; (1979) 142 CLR 531, 551-2 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.

[18] Ibid [26]-[27]. See also Reasons, [126].

[20] Ibid [17], [30]. See also Reasons, [126].

[25] Ibid. See also Reasons, [118(e)], [126].

[52] Ibid [87]. See also Reasons, [88].

[54] [2022] VSC 697.

[64] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.

[65] (2003) 214 CLR 118; [2003] HCA 22.

[66] Ibid 127-8, [27] (Gleeson CJ, Gummow and Kirby JJ).

[67] House (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

[68] GLJ [2023] HCA 32; (2023) 97 ALJR 857, 865 [15] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.

[69] Ibid 866 [16] (Kiefel CJ, Gageler and Jagot JJ).

[70] Ibid 866 [17] (Kiefel CJ, Gageler and Jagot JJ).

[71] Ibid 866-7 [19]-[20] (Kiefel CJ, Gageler and Jagot JJ).

[72] Ibid 867 [20] (Kiefel CJ, Gageler and Jagot JJ).

[73] Ibid 867-8 [22] (Kiefel CJ, Gageler and Jagot JJ).

[75] Ibid 868 [23] (Kiefel CJ, Gageler and Jagot JJ).

[77] [2020] VSCA 328; (2020) 62 VR 234, 262-3 [98] (Beach, Kaye and Osborn JJA); [2020] VSCA 328 ('WCB').

[78] [2018] VSCA 248, [49]-[51] (Beach, Kaye and Niall JJA).

[79] Referring to Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

[80] [2018] HCA 30; (2018) 264 CLR 541, 563 [49] (Gageler J); [2018] HCA 30.

[81] See, eg, Hunt v Holcombe [2018] VSCA 248.

[82] [2024] VSCA 20.

[83] [1998] 3 VR 833.

[84] Project Blue Sky Inc v Australian Broadcasting Commission [1998] HCA 35; (1998) 194 CLR 355, 381-2 [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); [2012] HCA 55; Interpretation of Legislation Act 1984 (Vic) s 35(a).

[85] Children Legislation Amendment Act 2019, s 1(2)(e). See further [108]-[109] below.

[86] Examples include the power to set aside judgments when obtained in default, when summary judgment is obtained in the absence of the affected party, when a judgment or order is made as the result of a mistake or error, or when a judgment is so irregular as to be a nullity: see, respectively, Supreme Court (General Civil Procedure) Rules 2015, rr 21.07, 22.23, 36.07 and LexisNexis Australia, Civil Procedure Victoria, [36.07.50].

[87] WCB [2020] VSCA 328; (2020) 62 VR 234, 270 [121] (Beach, Kaye and Osborn JJA); [2020] VSCA 328.

[88] Ibid 266 [112] (Beach, Kaye and Osborn JJA).

[90] (2020) 5 QR 440; [2020] QCA 190.

[91] WCB [2020] VSCA 328; (2020) 62 VR 234, 2678 [115] (Beach, Kaye and Osborn JJA). See also 266-7 [112]-[113] (Beach, Kaye and Osborn JJA); [2020] VSCA 328.

[92] Ibid 268-9 [116] (Beach, Kaye and Osborn JJA).

[93] Ibid 271 [124] (Beach, Kaye and Osborn JJA).

[94] Victoria, Parliamentary Debates, Legislative Assembly, 15 August 2019, 2695 (Luke Donnellan, Minister for Child Protection and Minister for Disability, Aging and Carers) ('Second Reading Speech').

[95] See Explanatory Memorandum, Children Legislation Amendment Bill 2019, 17; Second Reading Speech, 2695-6.

[96] Reasons, [124], extracted above at [61].

[97] Relying upon Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; (2017) 372 ALR 440, 466-7 [101]-[102] (Santamaria, Ferguson and Kaye JJA); [2017] VSCA 88 ('Masters Home Improvement').

[98] DZY had first addressed an argument which he presumed the Christian Brothers were making. That argument was that, on a proper construction of s 27QE, the only factors relevant to whether a court could be satisfied it was just and reasonable to set aside a settlement were positive findings that the limitations defence and/or Ellis defence had an impact on the decision to settle the claim. The Christian Brothers disavowed such an argument so no further submissions were advanced about it.

[104] At paragraph 28 of his affidavit affirmed 9 December 2022, DZY referred to a recollection from the 21 November 2012 settlement conference of difficulties suing Church institutions possibly impacting 'employment on my Centerlink benefits'. The statement made no sense. This single, muddled and brief reference to a potentially related issue did not assist his case. Given the importance of the possible influence of the specific legal barriers to his claims, and the fact that it was in dispute, DZY's failure to adduce specific, clear evidence on this point is significant. The Court should not speculate about what might have been intended or about what other evidence might have been called: ASIC v Hellicar (2012) 247 CLR 345, 411 [165] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 17.

[105] Masters Home Improvement [2017] VSCA 88; (2017) 372 ALR 440, 466-7 [101]-[102] (Santamaria, Ferguson and Kaye JJA); [2017] VSCA 88.

[107] For convenience, I will adopt the defined terms used in the reasons of the majority.

[108] See above [1]-[61].

[109] See above [62]-[102].

[110] See above [103]-[106].

[111] See above [110]-[113].

[113] See Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1994] HCA 54. See also, Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-420 [55] (Hayne, Crennan and Kiefel JJ); [2013] HCA 14.

[114] Explanatory Memorandum, Children Legislation Amendment Bill 2019, 16 (emphasis added).

[115] Second Reading Speech, 2695-6 (emphasis added).

[116] The Act, s 27OA, as inserted by Children Legislation Amendment Act 2019, pt 8 s 31.

[117] The Act, s 27OA, as amended by Justice Legislation Amendment (Drug Court and Other Matters) Act 2020, pt 4 s 44.

[118] Counsel for the Christian Brothers stated that 'it's not the [Christian Brothers'] case that it can't be just and reasonable to set aside a settlement agreement in circumstances where a plaintiff was motivated by factors unconnected to either the Ellis defence or the impugned quality of the consent'.

[120] See above [136], [139]-[140], [143]-[144].

[121] See above [137]-[139], [143].

[122] See above [147].

[123] See above [3], [42], [49], [146].

[124] See above [148], [150].