Limitation of Actions Act 1958, s 27QE.

DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16; (2025) 99 ALJR 806, applied.

1. Between 1970 and 1974, the plaintiff was a student at St Colman's College, Shepparton ('St Colman's' or 'the College'). From the 1950s, and while the plaintiff was a student at the College, St Colman's was a Marist Brothers school. In 1971, when the plaintiff was about 14 years old, he was sexually abused ('the abuse') by a Marist Brother and teacher at the College, John Skehan ('Skehan'). The abuse involved Skehan fondling the plaintiff's penis and testicles, forcing the plaintiff to masturbate Skehan's penis and penetration of the plaintiff's anus.
2. On 12 November 2015, the plaintiff and the defendant entered into a Deed of Release ('the Deed' or 'the settlement agreement') in which the defendant agreed to pay the plaintiff the sum of $165,000 inclusive of costs and disbursements ('the agreed sum') in full settlement of any cause of action the plaintiff had against the defendant in respect of the abuse.
3. On 11 August 2023, the plaintiff commenced a proceeding for damages (including aggravated damages and exemplary damages) against the defendant in the County Court. In that proceeding, the plaintiff alleges that the abuse occurred as a result of the negligence of the Marist Brothers, that the Marist Brothers were vicariously liable for Skehan's intentional torts committed against the applicant; and that as a result of the negligence of the Marist Brothers and the abuse, the plaintiff suffered psychiatric injury.
4. By its defence, the defendant admits the sexual abuse perpetrated by Skehan on the plaintiff; admits that the plaintiff was owed a non-delegable duty of care; but otherwise denies liability for the plaintiff's claim. In addition, the defendant has pleaded the existence of the Deed and subsequent payment of the agreed sum as a bar to the plaintiff's claim.
5. On 24 May 2024, the plaintiff filed a summons in the proceeding seeking orders that the Deed be set aside pursuant to ss 27QD and 27QE of the Limitation of Actions Act 1958 ('Limitation of Actions Act'). The plaintiff's application was heard over three days in September 2024 by her Honour Judge KL Bourke. On 28 November 2024, her Honour granted the plaintiff's application and, pursuant to s 27QE, made an order that the Deed 'is set aside wholly'.[1] As a consequence of that order, her Honour struck out the paragraphs of the defendant's defence which pleaded that the Deed acted as a bar to the plaintiff's claim.
6. The defendant now seeks leave to appeal (and, if leave is granted, to appeal) from the judge's orders. In summary, the defendant asserts that the judge erred in finding that the plaintiff's decision not to make any claim for economic loss at the time of the settlement agreement was materially influenced by the existence of the Ellis defence[2] (proposed ground 2).[3] If that proposed ground is made out, the defendant seeks orders setting aside the judge's order that the Deed be set aside and, in place of that order, there be an order setting aside the Deed in part only, such that the plaintiff may be 'permitted to bring a claim for loss and damage excluding any economic loss'.
7. For the reasons that follow, leave to appeal will be refused.

1. At the time the parties entered into the Deed, any claim for damages of the kind the plaintiff ultimately commenced against the defendant faced a significant legal obstacle, being the difficulties associated with suing an unincorporated association[4] such as the Southern Province of the Marist Brothers (the Ellis defence).
2. On 1 July 2018, the Legal Identity Of Defendants (Organisational Child Abuse) Act 2018 ('Legal Identity Act') came into force. Section 1 of the Legal Identity Act provided that its main purpose was:

to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities.

1. Section 7 of the Legal Identity Act provided for the nomination or appointment of an entity, often a trust associated with the relevant non-government organisation ('NGO'), to act as a proper defendant to a claim on behalf of the NGO, and to incur any liability arising from the claim on behalf of the NGO. In its defence, the defendant admits that it has been nominated as the entity to be named as a proper defendant in place of the Southern Province of the Marist Brothers for the purposes of s 7 of the Legal Identity Act.
2. Notwithstanding the potential improvements in the plaintiff's position brought about by the enacting of the Legal Identity Act, as at 1 July 2018, any viable claim the plaintiff may otherwise have had in respect of the abuse had been compromised by the terms of the Deed. However, there was then a further legislative enactment that potentially dealt with this issue.
3. On 18 September 2019, s 32 of the Children Legislation Amendment Act 2019 ('Children Legislation Act') came into force, inserting ss 27QA to 27QF into div 5 of pt IIA of the Limitation of Actions Act. Relevantly, s 27QA(2) permitted an action of the present kind to be brought 'on a previously settled cause of action'; and s 27QD permitted an application to be made to a court to set aside a settlement agreement which effected the settlement of the previously settled cause of action. Specifically, s 27QD(2) provided:

In a proceeding to which this section applies [being a proceeding founded on personal injury resulting from physical abuse or sexual abuse of a minor, which was settled before 1 July 2018][5], application may be made to the court for the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action to be set aside.

1. There is no issue between the parties that the present proceeding is a proceeding to which s 27QD applies. Section 27QE(1) then sets out the Court's powers in relation to the setting aside of settlement agreements as follows:

On an application under section 27QD or otherwise in a proceeding on an action referred to in section 27QA(2) [being an action brought on a previously settled cause of action], the court, if satisfied that it is just and reasonable to do so -

(a) may make an order setting aside the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action, whether wholly or in part; and

(b) may make any other order that it considers appropriate in the circumstances.

1. In about August 2014, the plaintiff contacted the law firm, Lewis Holdway, about the abuse. He met with and received advice from Mr Paul Holdway, principal of the firm. Mr Holdway was very experienced in acting for abuse survivors.
2. On 15 September 2014, Mr Holdway wrote to the plaintiff advising, among other things:

(a) of a range of legal options including criminal options, s 85B of the Sentencing Act 1991, Victims of Crime Assistance Tribunal and civil options;

(b) of the 'legal technical difficulties in suing the Marist Brothers ('the Order'). For example, most of the property and assets of the Order are tied up in a Property Trust, which is a legally separate entity to the unincorporated association that is the Order'. The letter advised that he was out of the time to bring a claim against the Marist Brothers, and that 'there is no Vicarious Liability in that religious brothers are not considered to be employees of the Order';

(c) if the plaintiff went to trial and lost, he could be made to pay the Marist Brothers' costs; and

(d) a 'remaining option' for the plaintiff was 'to approach the institution, that is, the Order to hold it accountable for the behaviour of the offenders.'

1. Having received Mr Holdway's advice, the plaintiff chose to engage informally with the defendant in relation to his claim. That informal engagement led to a settlement conference, which ultimately resulted in the parties agreeing to settle his claim and execute the settlement agreement.
2. At the recommendation of Mr Holdway, the plaintiff was seen twice - in October and November 2014 - by Dr Joseph Poznanski, a consultant psychologist, for the purpose of obtaining a medico-legal report to assist in his claim relating to the abuse. Dr Poznanski provided the plaintiff with a draft report on 12 December 2014 and a final report on 18 December 2014.
3. On 13 March 2015, Mr Holdway wrote to Brother Emili Turu, Marist Brothers Provincial of Australia, to advise he had received instructions from the plaintiff to act on his behalf. In the letter, Mr Holdway invited the Provincial to 'participate in a Restorative Justice process to resolve [the plaintiff's] complaints'. Mr Holdway gave evidence on the application that 'Restorative Justice' encompassed a 'whole-of-person approach', in which 'we talk very clearly about meeting financial needs, physical needs, psychological needs, whatever needs there are'.
4. On 2 April 2015, Brother Peter Carroll, the Deputy Provincial of the Marist Brothers, wrote to Mr Holdway. In the letter Brother Carroll:

(a) confirmed that the Marist Brothers were willing to participate in a restorative justice process;

(b) advised that, 'We have not been involved in such a process before with regard to sexual abuse, but have had experience in legal mediation. In most of these, with the consent of the victim, we have an initial pastoral meeting where the victim and a representative of the Brothers meet to talk about the abuse and its effects on the victim. An apology is offered. Normally, both the victim and the Brothers have their legal representatives present. In some cases, just the victim and the Brother meet together. From what I know of restorative Practice I imagine there will be some similarity in process.'; and

(c) advised that the Marist Brothers' insurers would have to be involved in determining any financial settlement.

1. On 15 April 2015, Colin Biggers and Paisley Lawyers ('CBP') wrote to Mr Holdway to advise they were instructed to act on behalf of the defendant and its insurer, Catholic Church Insurance Ltd ('CCI'), in relation to the plaintiff's claim. The letter stated, among other things:

We would be pleased to receive from you all documents relevant to the claim including any school records, medical reports (from a psychologist or psychiatrist), clinical notes, statements and any documents in support of a claim for economic loss (if relevant).

1. Subsequently, the defendant and plaintiff agreed to proceed to a settlement conference.
2. On 1 May 2015, Mr Holdway wrote to CBP in response, enclosing copies of the plaintiff's police statement, the plaintiff's victim impact statement,[6] the final report of Dr Poznanski and a letter from the College. Mr Holdway did not provide to CBP any documents in relation to a claim for economic loss. Mr Holdway gave evidence that he did not consider economic loss 'relevant', and that he recalled telling the plaintiff that 'we would not go to court. We would not make court claims for clients in this area'.
3. Prior to the settlement conference, the plaintiff was seen by consultant psychiatrist Dr Zeeva Cohen, at the request of CBP. Dr Cohen provided a report, dated 7 September 2015, which was made available to both the plaintiff and the defendant.
4. On 10 November 2015, in preparation for the settlement conference, the plaintiff met with Mr Holdway. The substance of the discussions between them was captured in handwritten notes. Some of the matters recorded in the notes were ultimately included in a document, titled 'List of Requests', that Mr Holdway used and annotated during the settlement conference. The List of Requests included 'money to assist with mortgage $200k now - repayments'.
5. The settlement conference was held on 12 November 2015. The plaintiff attended with Mr Holdway. Daniel Creasey of CBP attended as the legal representative of the defendant and CCI, together with Brother Tony Shears of the defendant.
6. Mr Holdway took notes of the settlement discussions and negotiations including annotations on the List of Requests. Following the settlement conference, Mr Holdway wrote a letter to the plaintiff which summarised what had occurred at the settlement conference, noting that:

(a) the plaintiff made a statement to those present about the impact of the abuse;

(b) Brother Shears apologised on behalf of the defendant, and gave a detailed explanation of their response;

(c) the plaintiff's List of Requests was presented, and the settlement conference then revolved around a negotiation between the lawyers in relation to the List of Requests;

(d) various offers went back and forward, the defendant having started at $130,000, and the plaintiff having started at $220,000, with the ultimate settlement being $165,000 together with a written apology; and that the plaintiff's legal fees were to be capped at $11,000, meaning he would receive $154,000 in his pocket; and

(e) as discussed prior to the conference, one of the plaintiff's aims was to significantly reduce his mortgage, which 'the settlement allows you to do... and with three years of working at least you will be able to pay the mortgage off, which will relieve you of a lot of financial stress into the future'.

1. Clause 1(a) of the Deed recorded the agreement of the defendant to pay the agreed sum ($165,000), in consideration of the plaintiff's promises set out in the Deed. By cl 1(b), the plaintiff acknowledged that the agreed sum was paid 'in full extinguishment of his rights' against the defendant; and in cl 4(a) the plaintiff gave the defendant a release from any claim he might have against the defendant in relation to the abuse.
2. Clause 1(f) provided that the agreed sum did not include 'any allowance for loss of earnings or loss of earning capacity as no such claim was made by [the plaintiff]'.
3. In cl 6(a) the plaintiff acknowledged and agreed that he would 'make no further claim for injury, loss, damages, expenses, treatment, costs, therapy or compensation ... arising out of or in connection with [the abuse]'; and that the Deed could be pleaded by the defendant 'as a bar to any claim, action, cause of action, charge or any other proceeding commenced against [the defendant] or any other person'.
4. On the last page of the Deed, under the heading 'Solicitor's Certificate', Mr Holdway certified that:

1. I am a legal practitioner holding a current practising certificate and I act for [the plaintiff].

2. I have explained the purport and effect of the annexed document [the Deed] to [the plaintiff], who appeared to me to understand the purport and effect of this document.

3. [The plaintiff] voluntarily signed the above document [Deed].

1. In his evidence before the primary judge, Mr Holdway agreed that he signed the solicitor's certificate 'in solemn circumstances knowing it would be kept with [the Deed]'; and that 'the matters [he] certified in [the] certificate were true'.

The application to set aside the Deed at first instance

1. In support of his application, the plaintiff relied upon an affidavit made by him on 10 May 2024; an affidavit made on 21 May 2024 by Mr Holdway; and three affidavits of the plaintiff's current solicitor, Laird Macdonald, made on 14 May 2024, 6 August 2024 and 30 August 2024.
2. In opposing the plaintiff's application, the defendant relied upon an affidavit made on 2 August 2024 by one of the defendant's current solicitors, Martin Slattery; an affidavit made on 27 August 2024 by Mr Creasey; and two affidavits of another of the defendant's current solicitors, Charles Harrison, made on 2 August 2024 and 28 August 2024.
3. During the hearing of the application, the plaintiff and Mr Holdway were called by the plaintiff to give oral evidence, and were cross-examined by the defendant; and Mr Slattery and Mr Creasey were called by the defendant to give oral evidence, and were cross‑examined by the plaintiff.

1. The judge commenced her reasons for judgment by describing the plaintiff's application to set aside the Deed, identifying the relevant statutory provisions and referring to relevant authority.[7] In the course of doing so, her Honour set out passages from the majority judgment in the Court of Appeal's decision of Trustees of the Christian Brothers v DZY.[8] Her Honour also observed, however, that the High Court had granted the plaintiff special leave to appeal from the decision in DZY (CA).[9]
2. After referring to submissions made by the parties, her Honour concluded that it was in the interests of justice that she determine the plaintiff's application to set aside the Deed before the High Court heard and determined the appeal from DZY (CA).[10] For completeness, we would note that the High Court, while disagreeing with the reasoning of the plurality in DZY (CA),[11] dismissed the appeal in that case on 9 April 2025 (a little over four months after her Honour gave judgment in the present case).[12]
3. The judge then summarised the issues in dispute in the application as they had been formulated by the parties. Broadly speaking, her Honour identified the issues as being:

(a) whether it was just and reasonable to set aside the Deed;

(b) what (if any) effect the Ellis defence had on the plaintiff's decision to settle the entirety of his claim against the defendant; and

(c) whether the plaintiff settled his claim 'at undervalue'.[13]

1. Next, the judge set out a lengthy summary of the evidence called and tendered on the application.[14]
2. The judge's summary of the plaintiff's evidence,[15] included the following:

(1) The plaintiff holds a range of tertiary qualifications, commencing with a Bachelor of Arts in 1980 and then postgraduate studies in social work at Monash University. After completing a bachelor's degree in social work, he moved to Bendigo and started work with the Department of Community Services in child protection. He then worked as a community development worker for a couple of years until starting teaching at Bendigo TAFE. In 2000, he was elected a delegate of the Australian Education Unit ('AEU'). Subsequently, he was the president at Bendigo and later returned to teaching. He was then back full-time as an elected official of the AEU and later vice-president. After a second stint with the AEU, the plaintiff taught at Melbourne Polytechnic for about 18 months, before commencing work as an executive officer with an industry training board (a position he held at the time of the hearing of his application to set aside the Deed).[16]

(2) In 2010, while employed with the Bendigo Regional Institute of Technical and Further Education, the plaintiff sent an email to fellow employees, who were also members of the AEU, which resulted in him being sanctioned by his employer. With the support of the AEU, he brought a claim under the Fair Work Act 2009 (Cth). That claim ended up in the High Court,[17] where the plaintiff was ultimately unsuccessful.[18]

(3) The plaintiff 'did not recall putting "N/A" in answer to dot point 2, "financial loss suffered as a result of the crime"' in his victim impact statement he made in relation to the abuse. 'He understood that meant immediate financial loss, and he did not lose any money as a result of the abuse'.[19]

(4) In relation to bring a claim against the defendant, 'The plaintiff understood from a legal rights perspective the deck was stacked against abuse survivors like him. He could not demand it, and he could not really take the Marist Brothers to court and win because of the hurdles his lawyer had informed him about.'[20]

(5) 'He understood the Ellis defence and agreed he was certainly interested in compensation after Skehan's conviction.'[21]

(6) 'He chose to engage with the Marist Brothers in an informal process as it was the most viable way to go given the obstacles: the problem of the time that elapsed since the incident and "also that legal structures that the churches had created to basically keep them out of the process, which [he] now know[s] as the Ellis defence".'[22]

(7) 'The [2015 claim] was made informally; there was no case issued and he never had a court date. It was not a civil claim for damages - he was asking for charity. He understood his lawyer's advice was he could not win if he were to take the Marist Brothers to Court.'[23]

(8) At the time of the 2015 settlement and subsequently, the settlement amount 'felt like a very modest figure when he thought about how his education was derailed, how he never felt safe at school after he was abused, and how he had been dealing with poor mental health for years and years'.[24]

(9) When asked why he had not put economic loss on the List of Requests, the plaintiff said 'probably because even today [he had] no way to sit down and actually try and calculate what ... an economic loss would be'.[25]

(10) 'There was nothing in his victim impact statement about economic loss because his view was he had no financial consequences; he was focused on the personal impact rather than anything else.'[26]

(11) The plaintiff knew that, in signing the Deed, he was saying 'okay, this is the best ... outcome'.[27]

(12) He agreed that under cl 1(f) of the Deed, he was acknowledging that he was not making a claim for loss of earning capacity and that this was consistent with his victim impact statement where financial loss had been marked 'N/A', and also consistent with the fact that no supporting documents for a claim for economic loss were provided to the defendant: '[he] wasn't even aware [he] could do it'.[28]

(13) The plaintiff had always been dissatisfied with the level of compensation he received in 2015.[29]

(14) He was alerted to 'the fact that the legal situation had changed and there might be an opportunity to go back again after he had heard from Rightside Legal', his current solicitors.[30]

(15) His current solicitors told him that the Ellis defence had been 'chucked out' by the State Government. 'He had not complained to his former solicitor, because he had always been of the view that while he had received insufficient funds, he got the best he could, and there was no way to get any more'.[31]

1. Mr Holdway acted for the plaintiff in 2014-2015. The judge's summary of Mr Holdway's evidence,[32] included the following:

(1) Mr Holdway had acted for survivors of childhood sexual and physical abuse for nearly 30 years. He worked with abuse survivors for at least 19 years, and was actively involved in the Royal Commission into Institutional Responses to Child Sexual Abuse. Mr Holdway also lodged a submission to the Victorian Parliamentary Inquiry that went on to publish the Betrayal of Trust Report. His submission gave a comprehensive overview of the way his clients had to navigate the compensation landscape at that time, which involved difficulties which included 'the church not being a legal entity' and 'the church's assets being protected by property trusts'.[33]

(2) During the period when Mr Holdway was acting for the plaintiff in 2014-2015, Mr Holdway did not formally litigate for survivors. He thought it was not possible to do so. He structured his practice as a mediation practice, sometimes using the term 'restorative justice'. He attempted to create an environment for a survivor where they were listened to and believed. Advice he gave to each of his clients included that 'there were legal technical difficulties, including issues relating to property trusts and available defendants'.[34]

(3) When he acted for the plaintiff, Mr Holdway knew that the plaintiff could not succeed in a litigated claim against the Marist Brothers - the legal barriers faced were insurmountable. The real-world consequence of legal barriers such as the Ellis defence, was that historical abuse claims were almost never litigated. Instead, the parties engaged in informal settlement discussions.[35]

(4) Mr Holdway's experience was that religious organisations took advantage of the difficult position survivors were in, and were only prepared to make modest payments. It was impossible to gain compensation for lost earnings for abuse survivors. The defendant, like other institutional defendants, would reject arguments for economic loss and refuse to pay compensation for lost income. Like all of Mr Holdway's clients, the plaintiff's only real choice was to accept whatever was offered by the defendant.[36]

(5) In November 2015, the Ellis defence could (and Mr Holdway believed would) have been used by the defendant to defeat any civil claim that the plaintiff brought.[37]

(6) Mr Holdway was not aware of any successful lawsuits having been brought against the defendant, or any other Catholic orders, on the basis of suing individual members for the abuse perpetrated by a brother or a priest. He was also not aware of the defendant paying compensation for lost income to survivors of childhood sexual abuse.[38]

(7) Mr Holdway did not agree that his dealings with Mr Creasey were fair, because he did not think there was a level playing field. However, he said that, if the plaintiff had been unhappy with the settlement conference process, he (Mr Holdway) would not have asked Mr Creasey to pass on his appreciation to the defendant for the manner in which the settlement conference was conducted.[39]

(8) Mr Holdway did not even think in terms of an economic loss claim in 2014-2015. He was focused on restorative justice, what the harms were and how they could be responded to. That harm did not include financial loss in a person's life, 'which for the plaintiff was focused on his mortgage stress, so they were considering economic matters, but not an economic loss claim in the way that that would normally be used'.[40]

(9) 'The request for any documents in support of a claim for economic loss was not relevant to the plaintiff's case because it was not possible to bring a legal claim, let alone a claim for economic loss at that point in time'.[41]

(10) In Mr Holdway's view, an economic loss claim could not be made, 'so he [Mr Holdway] did not discuss it as a specific issue with the plaintiff. It was not relevant, because it was not possible to bring a legal claim, let alone an economic loss claim'.[42]

1. Mr Macdonald, of Rightside Legal, is the plaintiff's current solicitor. In the course of summarising Mr Macdonald's evidence,[43] the judge noted Mr Macdonald's opinion that, in Rightside Legal's experience of litigating sexual abuse claims, if the deed were to be set aside, the plaintiff would obtain a settlement or verdict 'vastly in excess of $165,000, inclusive of legal costs'.[44]
2. The judge referred to the report of a forensic accountant, Mark Thompson, who had been retained by the plaintiff's solicitors for the purpose of assessing the plaintiff's economic loss. Her Honour noted that Mr Thompson assessed the plaintiff's economic loss 'on two distinct approaches'. On the first approach, the plaintiff's economic loss was assessed in the sum of $525,864; and on the second approach, his economic loss was assessed in the sum of $1,408,188.[45]
3. Mr Slattery is a partner in the firm of solicitors acting for the defendant in the present proceeding. The judge's summary of Mr Slattery's evidence,[46] included the following:

(1) Mr Slattery had had carriage of historical abuse matters on behalf of the Marist Brothers since his admission as a solicitor in 2008. He had also acted for a number of other religious institutions and schools in responding to historical abuse claims, as well as acting for plaintiffs in such claims.[47]

(2) 'The material available in the plaintiff's case relating to his negotiations in 2015 made no reference to issues such as liability, limitation periods, or identification of correct defendant. That is consistent with the way negotiations of historical abuse claims in which he [Mr Slattery] was involved occurred around that period. The absence of any reference to liability is reflective of the fact that those issues were not defences upon which the Marist Brothers intended to rely. In his experience, such issues would be flagged in correspondence or in discussions with the claimants or their lawyers if they were likely to be raised in the event a claim could not be resolved by negotiation'.[48]

(3) While there were 'most certainly' proceedings commenced against the Marist Brothers in 2015, none went to trial or judgment. They all resulted in a resolution using a court-ordered mediation.[49]

(4) The Ellis defence was a defence raised by some institutional defendants. It was something that was 'commonly misunderstood in his experience' and had 'received an overstated importance in the media'.[50]

(5) The Legal Identity Act was intended to provide an avenue for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non‑government organisations. The Act was a recognition of 'theoretical barriers to litigation' - not 'real barriers'. The number of defendants who actually relied on the barrier was 'negligible'.[51]

(6) A person abused in a Catholic school did not face a range of problems; rather, they faced 'hurdles'.[52]

(7) '[Mr Slattery's] response to the proposition put to him that it was never communicated to Mr Holdway that the insurer would not rely on the Ellis defence if he sued in relation to his claim was: "That question was never asked though ... the answer was never given I guess, yeah"'.[53]

(8) 'The Ellis defence was rarely raised in negotiations because it was not an issue. He [Mr Slattery] disagreed it was not raised as an issue because it was a well‑understood and well-established part of the legal landscape at the time'.[54]

(9) 'In May 2015, the Marist Brothers publicly stipulated that they would not generally rely on the Proper Defendant Defence for uninsured claims'. However, Mr Slattery 'confirmed that no public statement had been made in terms of insured claims, as was the case with the plaintiff's claim where the solicitor sought a [restorative justice] process'.[55]

(10) Mr Slattery had 'not been able to identify a single reported decision with someone like the plaintiff who had been abused by a brother or an Order or a priest who had been able to get to judgment and get some money through a litigated outcome'.[56]

(11) In Mr Slattery's experience, a 'no economic loss' clause (such as cl 1(f) of the Deed) was only inserted into a settlement deed in circumstances where:

(a) it was factually accurate to say that the settlement sum made no allowance for economic loss;

(b) the claimant had never asserted that they were entitled to economic loss, or had clearly abandoned a prior assertion that they were entitled to economic loss; and

(c) it had been agreed between the parties to the settlement agreement that (a) and (b) were accurate and that a 'no economic loss clause' should be inserted into the deed to be entered into between the parties.[57]

(12) It was the practice of Mr Slattery's firm, when acting for plaintiffs at the time the Deed was entered into, to take a complete history (including a work history) so that they were able 'to advise a client properly about their damages or compensation'. Mr Slattery's firm's practice was 'always to issue an economic loss claim'.[58]

1. Mr Creasey of CBP was the solicitor who attended the settlement conference on behalf of the defendant and CCI. The judge's summary of Mr Creasey's evidence[59] included the following:

(1) 'While he did not have a specific memory of the settlement conference in this case, the Ellis defence was not a legal issue that informed his assessment of quantum when managing [claims such as the plaintiff's]. He never raised nor relied upon it at any informal settlement conference. He would have felt very uncomfortable doing this work if CCI or the religious orders [for which he acted] instructed him to take technical defences in order to put downward pressure on potential settlements.'[60]

(2) He agreed there was no statement by the Marist Brothers that they were 'open to an economic loss claim or would not take the Ellis defence'. Mr Creasey only dealt with insured claims and 'he was not aware of any public statement [about the Ellis defence] in regard to insured claims'.[61]

(3) Mr Creasey was confident that he did not raise the Ellis defence at the settlement conference. 'The Ellis defence was not something that was alive in any of the work he did'. He agreed, however, that he did not tell anyone that the Ellis defence would not have been invoked in this case - saying, 'We weren't asked, so I didn't answer that question'.[62]

(4) When asked whether he considered a lawsuit against the Marist Brothers was a viable course of action in 2015 (not just theoretically possible), he responded: 'We were not instructed to pursue this issue with CCI'.[63]

(5) Mr Creasey was not aware of any successful plaintiff suing individual members of the provincial council of the Marist Brothers. Over the three years that he was at CBP, he participated in more than 75 informal conferences. None of these matters went to court.[64]

(6) 'Having been shown the CBP April 2015 "standard" letter which included a request that economic loss documents be provided, he [Mr Creasey] agreed there were very few claims made for economic loss "in this space"'.[65]

1. The judge referred to the affidavit evidence of Mr Harrison and the 'extensive documentation' exhibited by him.[66] Having regard to the issues in dispute between the parties in this Court, it is not necessary for us to refer further to that evidence.
2. After summarising the submissions of the parties,[67] her Honour commenced her analysis of the issues raised in the application by saying:

I accept the Ellis defence had a material influence on the plaintiff's decision to settle his claim.[68]

1. The judge found both the plaintiff and Mr Holdway to be credible witnesses. She accepted their evidence in relation to their understanding of the operation of the 'legal hurdle' created by the Ellis defence.[69] The judge observed that the defendant's submissions did not engage with why Mr Holdway adopted the restorative justice process, or with his evidence that it was impossible to formally litigate; nor did they deal with the plaintiff's evidence as to why he chose not to sue.[70]
2. The judge held that it was significant that the defendant never told the plaintiff that it would not rely on the Ellis defence. Her Honour concluded that it was also significant that the defendant 'never indicated to the plaintiff that it was prepared to deal with his claim on a full common law basis, either before or at the settlement conference'.[71]
3. The judge said that, while there was no evidence or suggestion that the plaintiff was pressured or treated unfairly by the defendant in the conduct of his claim or at the settlement conference, 'there was an atmosphere of unfairness created by the legal obstacle'.[72] As the judge put it, 'There was not a level playing field'.[73]
4. The judge found that Mr Holdway pursued the restorative justice process, and the plaintiff accepted his advice to do so, 'because there was no option of a viable common [law] damages claim'.[74]
5. In relation to the relevance of the Ellis defence, so far as the availability of a claim for economic loss was concerned, the judge said:

The existence of the Ellis defence and the lack of a viable common law claim is also of relevance to the availability of any economic loss claim to the plaintiff at that time.

Consistent with his view as to the operation of the Ellis defence, Mr Holdway did not seek the detailed instructions from the plaintiff as would usually be taken when an economic loss claim was possible - details of work history, tax returns, etc. Economic loss was not relevant because it was not possible to bring a legal claim let alone a claim for economic loss.

Mr Holdway's approach was not altered by the defendant's invitation in its April 2015 correspondence for him to provide any documents in support of an economic loss claim. That offer was 'if relevant', and I accept Mr Holdway's explanation that it was not relevant at that time.

There was nothing in that letter, or at any other time, to change Mr Holdway's view of the unavailability of an economic loss claim or indicate a willingness on the defendant's part to deal on a full common law basis.

Mr Holdway was not aware of the Marist Brothers paying compensation for lost income to survivors of childhood sexual abuse. Mr Creasey confirmed there was no statement by the Marist Brothers that they were open to an economic loss claim.

There is no evidence that the plaintiff elected not to pursue an economic loss claim. It was not put to the plaintiff he made any such election. This issue was addressed in a sentence in the defendant's written submission and not explained in oral submissions.

As the plaintiff submitted, the evidence supports a finding to the contrary that he made no such election; indeed, his evidence was that he was not aware he could make a claim for compensation for loss of income or impaired earning capacity.

In those circumstance, the plaintiff cannot be said to have made any election.[75]

1. The judge concluded that the plaintiff's decision not to pursue an economic loss claim was 'materially influenced by the existence and the potential impact of the Ellis defence'.[76]
2. Next, the judge concluded that, in settling his claim in 2015, the plaintiff 'settled at undervalue given the nature of the abuse and the impact the plaintiff [had] described across his life, and also the absence of any allowance for economic loss'.[77] The judge concluded that the agreed sum was 'not a reasonable assessment of the plaintiff's loss and damage in 2015, or adequate compensation by today's standards'.[78] The judge said that the legal hurdle created by the Ellis defence applied to the entirety of the plaintiff's claim.[79]
3. Finally, the judge said that there was 'no forensic prejudice to the defendant in terms of missing witnesses or missing documents at trial if the Deed is set aside' and that, for the reasons she had already given, she was satisfied that it was just and reasonable for the Deed to be set aside.[80]

1. In support of his application for leave to appeal, the defendant initially advanced three proposed grounds of appeal. As we have already noted, however, proposed grounds 1 and 3 were abandoned by the defendant shortly prior to the hearing in this Court. The remaining ground of appeal (proposed ground 2) is expressed in two parts: first, a complaint that the judge erred in making particular findings; and secondly, a mirror complaint that the judge erred in failing to make findings for which the defendant contended.
2. More particularly, the defendant's proposed ground of appeal is as follows:

2.1 The judge erred in finding that:

(a) the plaintiff's decision not to make any claim for economic loss at the time of the prior settlement was materially influenced by the existence of the Ellis defence;

(b) the prior settlement should be set aside insofar as it acts as a bar to any claim for economic loss by the plaintiff.

(a) the plaintiff's decision not to make any claim for economic loss at the time of the prior settlement was not a decision materially influenced by the existence of the Ellis defence;

(b) it was not just and reasonable to set aside the prior settlement so far as it acted as a bar to any claim for economic loss by the plaintiff.

1. In its application for leave to appeal, the defendant provided 'particulars of error' in relation to proposed ground 2 as follows:

(a) The judge erred in finding the existence of the Ellis defence was relevant to and materially influenced the plaintiff's decision not to pursue any economic loss claim at the time of the prior settlement, when the weight of the evidence did not support that conclusion. > > (b) The judge erred in finding, contrary to the evidence, that there was no evidence that the plaintiff elected not to pursue an economic loss claim: Reasons, [413]-[415]. > > (c) The judge erred in failing to find that any economic loss claim was not pursued by the plaintiff at the time of the prior settlement for reasons other than the existence of the Ellis defence. > > (d) The judge erred in finding that the defendant was not willing to resolve the plaintiff's 2015 claim on a full common law basis: Reasons, [400]. > > (e) The judge erred in finding, against the weight of the evidence, that the defendant was not prepared to consider an economic loss claim or deal with such a claim on a full common law basis at the time of the prior settlement: Reasons, [411].

1. The defendant commenced its submissions in this Court by observing that the plaintiff bore the onus of establishing that it was just and reasonable to set aside the Deed, whether in full or in part.
2. Having abandoned proposed grounds 1 and 3, the defendant accepted that the plaintiff had satisfied the onus so far as pain and suffering was concerned. More specifically, in this Court, the defendant made no complaint about the Deed being set aside in part so as to permit the plaintiff to maintain a claim against the defendant for damages for pain and suffering and loss of enjoyment of life. Thus, the defendant submitted that it was for the plaintiff to establish that 'his decision not to pursue a claim for economic loss was materially influenced by the Ellis defence'.
3. The plaintiff submitted that the effect of DZY (HC) was that the plaintiff was required to establish that the Ellis defence was material in his decision not to pursue a claim for economic loss. In making that submission, the defendant relied upon a passage in the judgment of the plurality in DZY (HC),[81] about which we will say more below.
4. In contending that the judge erred in finding that the Ellis defence played any part in the plaintiff's decision not to pursue a claim for economic loss, the defendant referred to and relied upon the following matters:

(a) the judge's findings in relation to the plaintiff which demonstrated that he was a 'sophisticated individual', with 'an impressive education', who had 'researched the limitation periods of his own accord';[82]

(b) the fact that in answer to the dot point, 'financial loss suffered as a result of the crime', in the plaintiff's victim impact statement in relation to the abuse, the plaintiff had responded 'N/A';[83]

(c) the fact that the two medico-legal psychiatrists[84] who examined the plaintiff prior to the settlement conference did not refer to any impact the abuse had upon the plaintiff's earning capacity but, to the contrary, their reports contained positive evidence that the plaintiff had not suffered any economic loss;

(d) the fact that the List of Requests made no mention of economic loss; and

(e) the plaintiff's own evidence that, as at 2015, he was not of the view that he 'had had financial consequences as a result of the abuse'.

1. In short compass, the defendant contended that, as at the date of the settlement conference, there was no evidence which supported an economic loss claim. To the contrary, there was positive evidence to suggest that the plaintiff did not have any claim for economic loss. Thus, the plaintiff could not (and did not) establish that the existence of the Ellis defence played any part in his decision not to pursue a claim for economic loss.
2. Next, the defendant submitted that the Deed, and in particular cl 1(f) of the Deed, was of critical importance as explained in the following passage in the defendant's written case in this Court:

It was a plain error to find there was no evidence that [the plaintiff] elected not to pursue an economic loss claim: Reasons, [413]-[415]. The unequivocal evidence that he did so is contained in the Deed ... at cl 1(f). [The plaintiff] received legal advice at the time of the Deed from an experienced solicitor, Mr Holdway. Mr Holdway signed a certificate confirming that he had explained the purport and effect of the Deed to [the plaintiff], who appeared to understand it, and confirmed as much in cross-examination. The judge failed to make any reference to the terms of the Deed or the solicitor's certificate.

The evidence clearly showed that [the plaintiff] elected not to pursue a claim for economic loss, with the benefit of legal advice at the time. The evidence does not demonstrate that the difficulty in nominating a viable defendant played any part in that decision at that time.

1. The defendant submitted that it followed from these circumstances that the judge's conclusion that 'the plaintiff cannot be said to have made any election',[85] was wrong. The defendant contended that, the moment the plaintiff signed the Deed, 'he must have been aware that he was electing not to pursue an economic loss claim; it's written in black and white in the Deed, "you are foregoing a claim for economic loss"'.
2. Finally, the defendant submitted that the plaintiff could not have relied upon any advice from Mr Holdway that he could not pursue a claim for economic loss because of the Ellis defence. In making that submission, the defendant noted Mr Holdway's evidence that he (Mr Holdway) did not discuss the making of a claim for economic loss as a specific issue with the plaintiff.[86]

1. As the High Court said in DZY (HC), the text of s 27QE of the Limitation of Actions Act requires that a court be satisfied that it is 'just and reasonable' to set aside a settlement agreement before so doing. As the High Court also said, there is no basis in the purpose or context of s 27QE for reading the words 'just and reasonable' as subject to some limitation not found in the text of the section.[87] Their Honours then said:

A useful description of the court's task in considering whether to set aside a settlement agreement under s 27QE was provided by Fraser JA in TRG v Board of Trustees of the Brisbane Grammar School. Although that decision concerned a different provision - namely, s 48(5A) of the Limitation of Actions Act 1974 (Qld) - that provision is materially identical to s 27QE. As Fraser JA said:

• [t]he use of the expression 'just and reasonable' to identify the only ground for such an order, the fact that the power is conferred upon courts, and the absence of any express identification of the material factors or the relative weight or significance to be attributed to any of them, compel the conclusion that the legislative purpose encompasses account being taken of the interests of both parties to the settlement in deciding whether it is just and reasonable to set aside the settlement agreement, the relative significance or weight to be given to the material factors in that exercise depending upon a judicial assessment of the particular circumstances of each case.

That construction of s 27QE is reinforced by the relevant extrinsic materials. It may be accepted that s 27QE seeks to address the existence of potentially unfair settlement agreements between victims of child abuse and defendant organisations as a result of historic, and unjust, legal barriers. However, the extrinsic materials reinforce that the breadth of the words 'just and reasonable' in s 27QE allow a court to set aside settlements in response to a variety of injustices. ...

...

It is apparent that their Honours [Beach and Macaulay JJA] incorrectly considered the legal barriers were, if not prerequisites to the exercise of the power under s 27QE, then quasi‑prerequisites, such that it is doubtful that s 27QE could apply absent either the limitation defence or the Ellis defence.

That is not to suggest that the previous legal barriers are irrelevant in determining whether it is just and reasonable to set aside a settlement agreement in whole or in part under s 27QE. One or both of the legal barriers will ordinarily play some part in determining whether it is just and reasonable to set aside a settlement agreement under s 27QE.[88]

1. Thus, a court may be persuaded that it is just and reasonable to set aside a settlement agreement made at a time when the Ellis defence was available to the respondent to a claim for damages for child abuse, without the claimant having to establish that the Ellis defence had a material impact on that claimant's decision to settle their claim.
2. As we have already observed, the defendant submitted that a subsequent paragraph[89] in DZY (HC) establishes that, contrary to the passage we have just set out, the High Court actually held that a claimant in the position of the current plaintiff was required to establish that the Ellis defence was material to their decision not to pursue a claim for economic loss. In order to deal with the defendant's submission, it is necessary to set out the paragraph it relies upon in the context of its surrounding paragraphs. Specifically, the defendant relied upon the emphasised paragraph in the following passage of the judgment of the plurality:

DZY submitted that Beach and Macaulay JJA erred in their conclusion that there was no positive finding by the primary judge that DZY's decision not to pursue an economic loss claim was materially influenced by the existence and potential impact of the limitation defence and the Ellis defence. Consequently, DZY argued, Beach and Macaulay JJA erred in concluding that the chief explanation for DZY's decision was a completely unrelated issue.

In oral submissions, counsel for DZY identified the following passages from the decision of the primary judge: (1) the statement that '[g]iven this confluence of circumstances it is not possible to isolate [DZY's] motivation for instructing his solicitor not to pursue his economic loss case solely to the possibility of a Centrelink repayment'; and (2) the statement that 'it is not possible to find that the limitations and the Ellis defence issues had no material influence on [DZY's] decision not to pursue his economic loss claim'.

Neither of those passages is inconsistent with the statement that there was no 'positive finding' that DZY's decision was 'materially influenced' by the limitation defence and the Ellis defence. The primary judge's finding was, in effect, that it was not possible to exclude the limitation defence and the Ellis defence as material factors. However, that is not the same as a finding that they were material factors.

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.[90]

1. The paragraph in DZY (HC), relied upon by the defendant to support the proposition that the plaintiff was required to establish that his decision not to pursue a claim for economic loss was materially influenced by the existence of the Ellis defence, formed part of the High Court's reasoning for rejecting a submission that the plurality in DZY (CA) erred in concluding that there was no positive finding by the primary judge that DZY's decision not to pursue an economic loss claim was materially influenced by the existence of the potential impact of a limitation defence and the Ellis defence. The paragraph relied upon by the defendant formed no part of the High Court's reasoning concerning the proper construction of s 27QE of the Limitation of Actions Act. As we have already observed, the High Court's reasoning on the construction issue was contained in earlier paragraphs of the plurality's judgment.[91]
2. More specifically, the paragraph of DZY (HC) relied upon by the defendant provides no support for the proposition that a claimant seeking to set aside a settlement agreement is required to establish that a limitation defence and/or the Ellis defence had a material impact on that claimant's decision to settle their claim. As the High Court made plain, the Ellis defence, while not irrelevant in determining whether it is just and reasonable to set aside a settlement agreement in whole or in part under s 27QE, is not a prerequisite (or quasi‑prerequisite) for the making of a successful application under that section.[92]

Did the judge err in setting aside the whole of the settlement agreement?

1. The defendant's contention that the judge erred in setting aside the whole of the settlement agreement is devoid of merit. Moreover, the judge did not err in concluding that the plaintiff's decision not to pursue an economic loss claim was materially influenced by the existence of the Ellis defence.
2. Having rightly concluded that the plaintiff's decision not to pursue an economic loss claim was materially influenced by the existence of the Ellis defence and that, in settling for the agreed sum, the plaintiff 'settled at undervalue',[93] the judge was correct to conclude that it was fair and reasonable to set aside the Deed in its entirety.
3. As was explained in DZY (HC), after her Honour delivered judgment, the plaintiff did not have to go so far as to prove that the Ellis defence materially influenced his decision not to pursue an economic loss claim. That said, proof of that matter, in circumstances where the plaintiff settled his claim with no allowance for economic loss, well-justified her Honour's conclusion that it was just and reasonable to set aside the Deed in whole, rather than merely in part.
4. In this Court, the defendant ultimately did not make any attack on the judge's conclusion that the plaintiff settled his claim in 2015 'at undervalue'.[94] Part of the reason the plaintiff's claim was settled at undervalue was because no claim for economic loss was made at the time of the settlement agreement, as was acknowledged by the plaintiff in the Deed (the terms of which he understood, they having been explained to him by Mr Holdway). It is to be remembered, however, that there were two critical pieces of evidence given in the application which were accepted by the judge and not the subject of challenge in this Court:

(a) Mr Holdway's evidence that, in his view, no claim for economic loss could be made such that he did not specifically discuss it with the plaintiff ;[95] and

(b) the plaintiff's evidence that he was not aware that he could make a claim for loss of earning capacity.[96]

1. A significant component of the defendant's argument in this Court was that the plaintiff, a sophisticated and well-educated individual, knew (believed) in 2015 that he had suffered no economic loss as a result of the abuse and, in executing the Deed, elected not to pursue any claim for economic loss. Such an argument is without merit:

(1) First, as the judge observed, the assertion that the plaintiff had made any such election was not put to the plaintiff in cross-examination. The issue was only addressed before her Honour in a sentence in the defendant's written submissions, and then not explained by the defendant in oral submissions.[97]

(2) Secondly, although the Deed contained an express acknowledgement by the plaintiff that he made no claim for economic loss, such an acknowledgment does not bespeak some choice or 'election' in the light of the critical evidence (set out above) that the plaintiff did not even know it was possible to make an economic loss claim.

1. Moreover, whatever might be made of the defendant's election submission, the present case was not about any formal election made by the plaintiff between inconsistent courses or remedies. Rather, the question for the judge was always whether, in all of the circumstances of the case, it was just and reasonable to set aside the Deed so as to permit the plaintiff to maintain the proceeding he commenced against the defendant in August 2023.
2. In his attempt to obtain compensation from the Marist Brothers in 2014-2015, the plaintiff did what any intelligent, sophisticated and well-educated person would do. He put himself and his claim in the hands of a very experienced solicitor with expertise in the field of acting for survivors of abuse of the kind to which the plaintiff had been subjected by Skehan. He then relied upon his solicitor to prosecute his claim to the fullest extent possible, accepting his advice to pursue a restorative justice approach. The course taken reflected Mr Holdway's view that there was no option of a viable damages claim, a view the judge found was realistic.[98] That finding was not challenged.
3. The fact that the plaintiff (unqualified as he was and is, in the manner in which damages for personal injury might be assessed and/or claimed) did not believe as at 2015 that he had suffered any economic loss as a result of the abuse was also of little moment. The evidence given by the plaintiff's current solicitor (Mr Macdonald) that the plaintiff would (if permitted to maintain his current proceeding) likely obtain a settlement or verdict 'vastly in excess of $165,000 inclusive of costs', together with the evidence of Mr Thompson of economic loss being assessed in the hundreds of thousands of dollars, tells against the significance of the plaintiff's modest opinion on that topic.
4. Even if it could be said that the plaintiff's reason for not pursuing a claim for economic loss in 2015 was that he did not believe he had suffered any economic loss (rather than because he believed the Ellis defence posed an impediment to such a claim), any such conclusion cannot be considered in isolation. The plaintiff's belief as to whether or not he had suffered economic loss had to be considered by the judge in the context of Mr Holdway's evidence that he gave the plaintiff no advice on the topic because he did not believe that any claim for economic loss could be made in the restorative justice process in which he advised the plaintiff to participate. On the evidence, it was the Ellis defence which resulted in Mr Holdway failing to take instructions and give proper advice as to the existence of an economic loss claim which would have been viable but for the existence of the Ellis defence.
5. We therefore consider that the defendant's proposed ground of appeal is without merit, and that the judge did not err in finding that the plaintiff's decision not to claim economic loss was materially influenced by the Ellis defence.

1. It follows, for the reasons given above as well as those given by the judge, that her Honour was plainly correct to hold that it was just and reasonable to set aside the Deed in its entirety. The contrary is not reasonably arguable. Leave to appeal must be refused.

[1] Barclay v Trustees of the Marist Brothers (Ruling) [2024] VCC 1859 ('Reasons').

[2] See Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565 ('Ellis').

[3] Proposed grounds 1 and 3, originally contained in the defendant's application for leave to appeal, were abandoned shortly prior to the hearing in this Court.

[4] These difficulties were identified in Ellis.

[5] See ss 27O and 27OA of the Limitation of Actions Act.

[6] Prepared by the plaintiff for use at Skehan's plea hearing which resulted in Skehan being sentenced to an eight-month term of imprisonment, which was suspended for two years, in October 2014.

[8] [2024] VSCA 73 ('DZY (CA)').

[11] Gageler CJ, Gordon, Edelman and Gleeson JJ; Steward J contra.

[12] DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806; [2025] HCA 16 ('DZY (HC)').

[17] See Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32.

[75] Ibid [408]-[415] (footnote omitted).

[81] DZY (HC) [2025] HCA 16; (2025) 99 ALJR 806, 813 [34].

[82] Reasons, [54]-[58], [73], [76].

[87] DZY (HC) [2025] HCA 16; (2025) 99 ALJR 806, 812 [25] (Gageler CJ, Gordon, Edelman and Gleeson JJ).

[90] Ibid 813 [32]-[35] (emphasis added).

[94] There was initially such a complaint in proposed ground 3 but, as we already said, that ground was abandoned prior to hearing.