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1. The plaintiff, to whom I will refer as VT, has sued the Commonwealth for damages arising from alleged physical and sexual abuse suffered by him when he served in the Royal Australian Navy from the time when he was a minor, having enlisted at the age of 16. VT has also sued a firm of solicitors as the second defendant to the action, alleging negligence in their handling of his first attempt to obtain appropriate compensation from the Commonwealth.

2. According to the current pleading, the abuse occurred from 1969 when VT was stationed at HMAS Leeuwin (located in Western Australia) and HMAS Duchess (located in New South Wales). Counsel appearing for VT has foreshadowed that the particulars of the alleged abuse may be supplemented to include allegations of further abuse that happened at sea, but that is not reflected in the current pleading.

3. In November 2017, VT retained the law firm, Donaldson Law Pty Ltd (now Adair Donaldson Pty Ltd), to pursue a claim against the Commonwealth for damages arising from the alleged abuse. No court proceedings were commenced at that time. In October 2018, that claim was resolved on terms that included releasing the Commonwealth from any further claim arising from the same allegations. The release was supported by a clause in the settlement deed providing that the Commonwealth could raise a plea in bar to any such further claim.

4. On 25 September 2024, VT commenced the present proceedings against the Commonwealth and Adair Donaldson Pty Ltd. It is common ground that the claim as against the Commonwealth cannot succeed unless the settlement deed is set aside or is otherwise unenforceable. The claim against the solicitors is primarily brought in the alternative, against the possibility that the settlement deed is not set aside (in which event VT will seek as against the solicitors the amount he claims he would have been compensated but for their alleged negligence, or compensation for the loss of the chance to obtain such compensation).

5. This Court has a statutory power to set aside an “abuse settlement agreement”: s 114K of the Civil Law (Wrongs) Act 2002 (ACT). Section 114K was inserted into the Act in 2022 by the passing of the Justice and Community Safety Legislation Amendment Bill 2022, which formed part of the Territory’s response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

6. Before s 114K came into force, the Territory had already legislated to remove any limitation period for a cause of action substantially arising “from sexual abuse to which the person was subjected when the person was a child in an institutional context”. That was achieved by the introduction of s 21C of the Limitation Act 1985 (ACT), which was first inserted into that Act in 2016 by the passing of the Justice and Community Safety Legislation Amendment Bill 2016 (No 2). The 2016 Bill sought to implement the recommendation of the Royal Commission to remove limitation periods that apply to claims for damages brought by survivors of child sexual abuse in an institutional context, which the Royal Commission had found were a barrier to survivors commencing civil proceedings.

7. The explanatory memorandum for the 2022 Bill explained that the further reforms (providing for the setting aside of abuse settlement agreements) aimed to address the “unjust products of the previous barriers [to civil litigation], which led to survivors accepting inadequate settlements and releasing institutions from future liability”. The object of the reforms was to allow survivors “to receive compensation that is appropriate by today’s standards.”

8. Understood in that context, it may be seen that the purpose of s 114K of the Civil Law (Wrongs) Act is remedial. It confers power on the Court to set aside an abuse settlement agreement that stands as a bar to a claim for historical child abuse which, the limitation period having been removed, would (all other things being equal) otherwise be able to be pursued. Consistently with the statutory context in which the section was introduced, its application is confined to abuse settlement agreements the effect of which is to stymy the benefit of the removal of the limitation period. Thus, one of the requirements of the statutory definition of “abuse settlement agreement” in s 114J of the Civil Law (Wrongs) Act is that the agreement be one that “prevents the exercise of an action on a cause of action to which the Limitation Act 1985, section 21C (Personal injury resulting from child abuse) applies”.

Proposed separate questions

9. That introduction serves to explain why a central question in these proceedings will be whether VT’s claim is an action on a cause of action to which s 21C of the ACT Limitation Act applies. The Commonwealth contends that VT’s claim is not governed by s 21C because, so the argument goes, it is governed by the law of Western Australia (for any events that occurred on HMAS Leeuwin) and the law of New South Wales (for any events that occurred on HMAS Duchess). The Commonwealth accordingly submits that the settlement deed is not an “abuse settlement agreement” within the meaning of s 114J of the Civil Law (Wrongs) Act, and that the Court accordingly has no power to set the deed aside under s 114K of the Civil Law (Wrongs) Act.

10. The Commonwealth seeks to have the correctness of those contentions determined as separate questions, as contemplated by r 1521(1) of the Court Procedure Rules 2006 (ACT). That rule confers power on the court to make “an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding”.

11. The questions specified by the Commonwealth in its application for an order for separate decision are: (a) Is the Deed of Settlement and Release dated 29 October 2018 signed by the plaintiff and the first defendant (Deed) an “abuse settlement agreement” within the meaning of s 114J of the Civil Law (Wrongs) Act 2002 (ACT)? (b) If the answer to question (a) is no, does this Court have power to set aside the Deed under s 114K of the Civil Law (Wrongs) Act 2002 (ACT)? (c) If the answer to the question (b) is no, is the plaintiff’s claim against the first defendant in these proceedings released, barred or extinguished by operation of: (i) the terms of the Deed; (ii) s 14 of the Limitation Act 2005 (WA); or (iii) s 14 and s 63 of the Limitation Act 1969 (NSW)? (d) In light of the answers to questions (a)-(c), what consequential relief should be granted, if any? (e) Who should pay the costs of the hearing of the separate questions?

12. VT contends that his causes of action are governed at least in part by the law of the Territory. If that is correct, it would follow that the settlement deed is or may be liable to be set aside under Territory law. VT opposes the Commonwealth’s application primarily on the ground that the Court’s determination of those issues will be informed by a rich factual analysis that cannot conveniently be separated from the substantive hearing of his claims.

13. Adair Donaldson Pty Ltd neither opposes nor consents to the Commonwealth’s application.

Principles to be applied in determining whether to order a separate question

14. The principles to be applied in determining whether to order the separate decision of a question were recently summarised by Faulkner J in LSR3 v New South Wales [2024] NSWSC 1570 at [23]-[32] (addressing the cognate provision in the Uniform Civil Procedure Rules 2005 (NSW)). His Honour noted at [27] the principle provided in the case of Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. In Tallglen at 141, Giles CJ stated the starting point is that, in the ordinary course, “all issues in proceedings should be decided at the one time”. However, as the Chief Judge went on to say in Tallglen at 141, “separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end”.

15. Rule 1521(1) of the Court Procedures Rules confers a discretion (“[t]he court may make an order”). The applicant bears the onus of demonstrating why the ordinary procedure should not be followed and what benefit would arise from separating the questions.

16. In the present case, if the Commonwealth were successful in establishing that the settlement deed is not an “abuse settlement agreement” within the meaning of s 114J of the Civil Law (Wrongs) Act, that decision would likely bring the proceedings to an end as against the Commonwealth (“likely”, only because the plaintiff did raise a discrete point about the enforceability of the settlement deed). It would remain for VT to pursue his claim against Adair Donaldson Pty Ltd. That claim would be strengthened by a decision that the deed cannot be set aside, because part of the case on damages as against Adair Donaldson Pty Ltd would be to prove that any further claim against the Commonwealth was now foreclosed as a result of their conduct of the claim they were retained to prosecute.

17. Those considerations, particularly including the prospect of releasing one of the defendants from the proceedings at an early stage, point in favour of ordering the separate determination of the questions specified by the Commonwealth. However, that is not the end of the matter. It is also necessary to have regard to case management considerations. The Commonwealth contends that the proposed questions can conveniently be decided separately because they raise straightforward questions of law in respect of which any relevant facts could be agreed or readily ascertained. I note in that context the cautionary remarks of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at 55; [168], paraphrased by Faulkner J in LSR3 at [30] as being that “[r]easoning which initially favours an order for separate questions may turn out to be superficial as the preparation and hearing of the separate questions progresses”. There is good reason for apprehending that may be the case here. In order to explain why that is so, it is necessary to explain the legal basis for VT’s claims. Plaintiff’s claims against the Commonwealth

18. The plaintiff frames his claim against the Commonwealth in three ways: direct breach of duty of care, vicarious liability for the conduct of other members of the Navy and breach of a non-delegable duty. The claim for breach of a non-delegable duty was added by amendment earlier this year following the publication of the decision of the High Court in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 in which earlier authority precluding the recovery of damages for breach of a non-delegable duty in the case an intentional wrong was reversed.

19. The Commonwealth denies liability and further pleads the settlement deed as a total bar to VT’s claim. In addition, the Commonwealth pleads that: (a) under clause 9 of the settlement deed, the deed is governed by the laws of Western Australia; (b) for events alleged to have occurred on HMAS Leeuwin, the claim is governed by the law of Western Australia; (c) for events alleged to have occurred on HMAS Duchess, the claim is governed by the law of New South Wales.

20. On 16 May 2025, VT filed his own pre-trial application seeking an order that the settlement deed be set aside under s 114K of the Civil Law (Wrongs) Act on the grounds that the settlement was not just and reasonable. The Commonwealth opposed that application on the basis that: (a) the Deed is not an “abuse settlement agreement” within the meaning of s 114J of the Civil Law (Wrongs) Act and s 114K therefore cannot apply; (b) the Court does not have power under s 114K to set aside the Deed as the provision cannot apply extra-territorially; (c) under the laws of Western Australia and New South Wales, there is no power to set aside the Deed.

21. VT did not pursue his application, perhaps because it was apprehended that the events of the publication of the decision in AA would change the legal landscape (as indeed it did). On 6 July 2026, the Commonwealth filed its application seeking an order for the decision of the separate questions. Do the separate questions raise disputed questions of fact?

22. In my assessment, the critical consideration is whether the decision of the separate questions will require the consideration of disputed facts.

23. It may be accepted, as submitted by the Commonwealth, that the proposed questions as framed do not raise any issue as to the reasonableness of the agreement recorded in the settlement deed. The Commonwealth seeks only that the Court decide, as a preliminary question, whether it has power to set the deed aside (not whether the deed should be set aside).

24. The Commonwealth accordingly characterises the proposed questions as questions of law primarily concerning the proper construction of s 114K of the Wrongs Act. It was acknowledged that some factual issues may arise, but submitted that those issues would be largely ascertained from the pleadings. The only evidence the Commonwealth anticipates serving is the deed itself and evidence of the location of the vessels in question at the relevant times.

25. I am less sanguine about the likely scope of the evidence that may be required to decide the separate questions. As already explained, whether the Court has power to set aside the settlement deed will be determined by identifying the proper law of the causes of action VT seeks to prosecute. The Commonwealth accepts that, if the proper law is the law of the Territory, the settlement deed is at least capable of coming within the scope of the power conferred by s 114K.

26. As has been recognised in the authorities, determining the place of a tort is not always straightforward.

27. The Commonwealth submitted that, in a case of negligence, it is usually important to consider where the defendant acted, not where the consequences were felt. I understood the Commonwealth to accept that, if the determination of that issue would require VT to give evidence, the order should not be made. That is clearly right. It would not be fair to require VT to give evidence twice about events that, if they occurred, no doubt were and remain extremely traumatic to him. That course would also carry the risk of inconsistent findings (including as to credit) in the event that the separate questions and the substantive proceedings were not able to be heard by the same judge. That is always a risk in this Court, which has only six resident judges.

28. However, the Commonwealth submitted that the proper law of the torts can be determined by reference to the pleading, without the need for VT to give evidence. The Commonwealth submitted that the question whether s 114K applies to VT’s claim is a straightforward question of law in respect of which any relevant facts (such as where HMAS Leeuwin or HMAS Duchess was located at any particular point in time) could be readily ascertained and would not be in dispute. The Commonwealth noted that, according to the pleading, those are the places where the defendant allegedly acted.

29. Mr Campbell SC, who appears with Mr Ronald for the plaintiff, disputed that narrow reading of the pleading. He noted that the particulars include an allegation of failure by the Commonwealth or its delegate “to devise any measures, systems, policies or directives, including as to reporting, supervising and prohibiting such conduct from occurring” and to eradicate the alleged culture of abuse VT says existed where he was stationed. Mr Campbell submitted that the taking of such steps is quintessentially the responsibility of senior members of the Royal Australian Navy, who would be stationed in the Territory.

30. Leaving aside that point, the principal focus of Mr Campbell SC’s argument was on the recently added claim for breach of a non-delegable duty. Mr Campbell SC submitted that claim has its origin in the events following the point at which the plaintiff made his application to the Commonwealth for enlistment as a 16-year-old boy in the Navy in May of 1968. VT’s case is that, as at that point, the Commonwealth knew or ought to have known of systemic abuse of relevant kinds within the Navy at various establishments including HMAS Leeuwin when berthed in Freemantle, HMAS Duchess when berthed in Sydney and, later, HMAS Albatross at sea. The knowledge of the Commonwealth at that point is a factual allegation that will have to be proved at the substantive hearing. It seems unlikely that it will be the subject of a statement of facts agreed for the purpose of deciding the proposed separate questions.

31. Mr Campbell SC submitted that, in the case of the claim based on a non-delegable duty of care, “the delegation has its origin...in the senior members of the defence forces that were doing their thing at head office, which was located in the Territory”. It was submitted on that basis that the cause of action arises within the Commonwealth and is governed by the common law of the Commonwealth subject to whichever statutory provisions become a part of that law.

32. The determination of that question is complicated by the fact that, until the publication of the decision of the High Court in AA, it was not open to prosecute a cause of action for breach of a non-delegable duty of care in respect of an intentional or criminal tort. Presumably for that reason, there is no established principle as to the proper law of such a cause of action. No question of location of the tort arose in AA because the events in question arose wholly within NSW. The parties were unaware of any authority as to where the cause of action arises in circumstances such as the present.

33. In those circumstances, Mr Campbell SC submitted that an order for the decision of the proposed separate questions should not be made because their determination will necessarily involve a factual analysis of the events underlying the claim. Counsel for the Commonwealth accepted that, if determination of the proposed separate questions will involve that kind of factual analysis, it would not be appropriate to make the order sought.

34. I am not positively persuaded that the decision of the proposed questions would necessarily require VT to give evidence of the events underlying his claim. However, it seems highly likely that, at least so far as the claim for breach of a non-delegable duty of care is concerned, the required evidence will go well beyond the scope of the evidence foreshadowed by the Commission (the deed and the locations of the various vessels at various times). It may at least require a senior officer of the Navy to give evidence as to what was known at head office and the processes for the recruitment of young men and women seeking enlistment in the Navy in the late 1960s.

35. The question of the proper law of the cause of action for breach of a non-delegable duty of care, if interesting, seems likely to be complex. As noted by Mr Campbell SC, if the proper law of such a claim is to be determined according to where the final act that completes the cause of action takes place, different plaintiffs would have a cause of action against the Commonwealth (or not) depending on which Navy vessel they were on. On that analysis, the remedy would be fortuitous. That would produce an incoherent principle in this field.

36. Finally, the Commonwealth very fairly conceded that, if there is to be an allegation (which is not clear on the face of the current pleading) that some of the abuse took place on the high seas, there is authority to suggest that ACT law, including ACT limitation law, governs the claim.

37. In my assessment, even the narrow question of the Court’s power to set aside the deed, on its face a question of law, seems likely to involve contested factual issues broader in scope than contemplated by the Commonwealth’s submissions. At the very least, it cannot be concluded at this stage of the proceedings that the separate questions will not involve a broader scope of contested factual issues.

38. In all the circumstances, I am not persuaded that it is appropriate to depart from the ordinary course of determining all issues in the proceedings at the one time.

Orders

39. For those reasons, I make the following orders: (1) The Commonwealth’s application filed on 6 July 2026 is dismissed. (2) The Commonwealth is to pay the plaintiff’s costs of the application.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date: