In the recent matter of EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490, the plaintiff, EXV (a pseudonym), filed proceedings against the defendant, the Uniting Church in Australia Property Trust, in relation to historical sexual abuse suffered by the plaintiff whilst he was a student at Knox Grammar School by teacher, Mr Adrian Nisbett between 1999 to 2002.
On 24 February 2009 Mr Nisbett was arrested. On 15 October 2010 he pleaded guilty to two counts of sexual assault. Neither of those counts related to the incident alleged by the plaintiff.
In 2007 and 2008, EXV pursued an unlitigated claim against Knox Grammar School (Knox) based on an allegation of one instance of child sexual abuse perpetrated against him by Mr Adrian Nisbett in 2002 (the 2007 Claim). At the time of the alleged abuse, Mr Nisbett was a teacher at Knox and the plaintiff was a student. At the relevant time, the Synod of the Uniting Church in Australia Property Trust (NSW) operated Knox. The 2007 Claim was mediated on 18 December 2008 (the Mediation). As a result, the plaintiff agreed to accept the sum of $115,000 inclusive of costs in full and final satisfaction of the 2007 Claim, which left him with approximately $83,000 after the payment of costs and disbursements. A Deed of Agreement was executed by the parties (being the plaintiff and the defendant in these proceedings, the Uniting Church in Australia Property Trust (NSW)) on 19 December 2008 by which the plaintiff released the defendant from liability for any further claims relating to the plaintiff’s allegations against Mr Nisbett (the Settlement Deed).
By way of a Statement of Claim filed on 8 June 2022, the plaintiff brought a new claim against the defendant, based on the same allegations that were the subject of the 2007 Claim, alleging that the defendant is directly liable in negligence or vicariously liable for the intentional torts committed against the plaintiff by Mr Nisbett in 2002 (the 2022 Claim).
In its Defence filed on 27 July 2022, the defendant pleads the Settlement Deed as a complete answer to the 2022 Claim, and says that it irrevocably released and discharged the defendant from all claims and/or suits arising out of, or in connection with, the alleged sexual abuse perpetrated upon the plaintiff by Mr Nisbett, so that the 2022 Claim cannot be maintained.
On 25 August 2022, the plaintiff filed a Notice of Motion seeking an order pursuant to s 7D of the Civil Liability Act 2002 (NSW) that the Settlement Deed be set aside and, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 64 of the Civil Procedure Act 2005 (NSW) (CPA), that the part of the defendant’s Defence which relies upon the Settlement Deed be struck out.
Ultimately, on 2 May 2024, the New South Wales Supreme Court refused the plaintiff’s notion of motion to set aside the previous settlement Deed with the defendant. The Court did not accept that any perceived difficulty in suing an unincorporated association in 2008 presented as a material legal barrier with respect to the 2007 Claim and had no bearing on the settlement at the Mediation. None of the plaintiff’s witnesses mentioned it in either their oral or written evidence (at [203]). At [207] to [208], and at [213], the Court provided as follows:
The plaintiff wished for the proposed litigation to end, so that he could get on with his life. In my opinion, the plaintiff’s decision to settle his claim, against legal advice, was driven by his perception that there was insufficient evidence to make out a claim in negligence against Knox, and his anxiousness to resolve his claim rather than have it litigated in court over time. In my view, neither the Ellis defence nor the limitation issue influenced the plaintiff’s decision to settle at the Mediation. This is a factor which militates against the exercise of my discretion in s 7D(2).
The conditions of the Mediation did not amount to impropriety on the part of the defendant, and were not said by any witness to have influenced the outcome
The Court further ordered that the plaintiff is to pay the defendant’s costs of the motion.
Additionally, the Court ordered that the plaintiff’s proceedings be dismissed and that the plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement to some other costs order.
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