Part 7BChild abuse—setting aside settlements

Part 7B—Child abuse—setting aside settlements 50V—Meaning of affected agreement (1) In this Part, affected agreement means an agreement— (a) that prevents the commencement or maintenance of proceedings on a cause of action to which section 3A of the Limitation of Actions Act 1936 applies if— (i) the agreement occurred before the commencement of that section; and (ii) at the time of the agreement, a limitation period applying to the cause of action had expired; or (b) that prevents the commencement or maintenance of proceedings on a cause of action in respect of an abuse claim (within the meaning of Part 7A) if— (i) the agreement occurred before the commencement of Part 7A; and (ii) at the time of the agreement, proceedings on the cause of action could not be commenced or maintained against a person or institution that would have been liable under Part 7A for child abuse had the Part been in force. (2) For the purposes of this section, a limitation period is taken to have expired even if it were possible at the time to seek the leave of a court to extend the period. 50W—Court may set aside affected agreement (1) A person (the applicant) who, because of an affected agreement, is prevented from commencing or maintaining proceedings on a cause of action to which section 3A of the Limitation of Actions Act 1936 applies, or in respect of an abuse claim (within the meaning of Part 7A), may— (a) commence proceedings on the cause of action in a court with sufficient jurisdiction to hear the cause of action; and (b) apply to the court to set aside the affected agreement. (2) The court may set aside an affected agreement if it is just and reasonable to do so. (3) The court may consider the following in making its decision to set aside the affected agreement: (a) the extent to which the existence of the limitation period or barriers to identifying an appropriate defendant materially contributed to the applicant's decision to enter into the agreement; (b) the circumstances in which the agreement was negotiated and entered into, including— (i) whether negotiations were affected by an imbalance of power; and (ii) whether the applicant was legally represented; and (iii) whether the defendant (or other parties) engaged in unfair or oppressive conduct; (c) any other matter the court considers relevant. (4) Section 67C(1) of the Evidence Act 1929 does not prevent evidence being adduced in proceedings under this section, even if the evidence is of a communication made, or a document prepared, in connection with an attempt to negotiate a settlement of the dispute to which the affected agreement relates. (5) If the court decides to set aside an affected agreement it may also set aside any of the following that gives effect to the agreement: (a) a contract, deed or other agreement; (b) an order or judgment of the court or of a lower court. (6) However, the court must not set aside the following: (a) a deed of release signed by or on behalf of the applicant in acceptance of an offer under the National Redress Scheme and an agreement relating to a relevant prior payment that has been taken into account in the offer; (b) a contract of insurance. (7) In this section— National Redress Scheme means the National Redress Scheme for Institutional Child Sexual Abuse established under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 of the Commonwealth. 50X—Effect of setting aside affected agreement (1) An affected agreement and anything else set aside under this Part is void. (2) An amount paid or other consideration given under the affected agreement— (a) is not recoverable despite the agreement being void; and (b) may be taken into account by the court in determining damages in proceedings for a cause of action to which the affected agreement related.