5CPreviously settled causes of action relating to child abuse

### 5C Previously settled causes of action relating to child abuse > [*\[Section 5C Inserted by No. 48 of 2019, s. 8, Applied:01 May 2020\]*](/view/html/inforce/2020-05-01/act-2019-048#GS8@EN) > > > (1)  In this section – > > > > > ***child abuse*** means – > > > > > > > > (a) sexual abuse, or serious physical abuse, of a child; and > > > > > > > > > (b) any psychological abuse of the child that arises from the sexual abuse or serious physical abuse of the child – > > > > > > but does not include an act that is lawful at the time at which it occurs; > > > > > ***previously settled relevant right of action*** means a relevant right of action that was settled before the day on which [section 5B](#GS5B@EN) commenced but after a limitation period applying before that day to the right of action had expired; > > > > > ***relevant court***, in relation to a relevant right of action, means a court which, but for an agreement settling the relevant right of action, would have jurisdiction to deal with the action; > > > > > ***relevant right of action*** means a right of action in respect of child abuse. > > > (2)  An action may be brought on a previously settled relevant right of action if a relevant court, by order on application, sets aside the agreement effecting the settlement, on the grounds that it is in the interest of justice to do so. > > > (3)  Without limiting the matters to which a court may have regard in determining whether it is in the interests of justice to set aside an agreement effecting a settlement in respect of a relevant right of action, the Court is to have regard to the following: > > > > > > (a) the amount of the agreement; > > > > > > > (b) the relative strengths of the bargaining positions of the parties; > > > > > > > (c) any conduct, by or on behalf of the organisation to which the agreement relates, that – > > > > > > > > > > (i) relates to the cause of action; and > > > > > > > > > > > (ii) occurred before the settlement was made; and > > > > > > > > > > > (iii) the court considers to have been oppressive. > > > (4)  If a court orders under [subsection (2)](#GS5C@Gs2@EN) that an agreement effecting a settlement be set aside, so much of the agreement, and any other agreement (apart from a contract of insurance) relating to the settlement, is, despite any Act, law or rule of law, void to the extent to which it relates to the child abuse to which the cause of action relates. > > > (5)  A party to an agreement that is wholly or partly void under [subsection (4)](#GS5C@Gs4@EN) cannot seek to recover an amount paid by or in respect of the party under the agreement on the basis that the agreement is void to that extent. > > > (6)  A court hearing an action on a previously settled relevant right of action may, if it is satisfied that it is just and reasonable to do so when awarding damages in relation to the action, take into account any amount, paid under an agreement that is wholly or partly void under [subsection (4)](#GS5C@Gs4@EN) , to the extent to which the amount relates to the child abuse to which the cause of action relates. > > > (7)  For the purposes of [subsection (6)](#GS5C@Gs6@EN) , half of the total of all amounts paid under an agreement is taken to be the amount relating to the child abuse to which the cause of action relates, if the agreement – > > > > > > (a) does not relate solely to the child abuse; and > > > > > > > (b) does not expressly indicate the extent to which the agreement and amounts paid under it relate to the child abuse. > > > (8)  This section does not apply in relation to an agreement effecting a settlement that is an offer of redress accepted under section 42 of the *National Redress Scheme for Institutional Child Sexual Abuse Act 2018* of the Commonwealth.