In the recent related matter of Barclay v Trustees of the Marist Brothers (Ruling) [2024] VCC 1859, the plaintiff, Gregory Paul Barclay, brought proceedings against the defendant, the Trustees of the Marist Brothers (Ruling) seeking relief from the compromise of a claim for personal injury damages recorded in a Deed entered into on 12 November 2015.

The plaintiff was born in regional Victoria in July 1956. When he was about 13, he started school at St Colman’s College (“St Colman’s”), a Marist Brothers school in Shepparton. In about around 1971, when aged about 14, he was sexually abused by Brother John Skehan (“Skehan”) a teacher appointed by the Marist Brothers (“the abuse”). The plaintiff was pulled out of class by Skehan and taken by him to the Marist Brothers’ residence on the school grounds. Skehan took the plaintiff to his bedroom, had him sit on his bed and then lie down on his back. Skehan proceeded to fondle the plaintiff’s genitals then forced him to masturbate Skehan’s erect penis. Skehan directed the plaintiff to role onto his stomach. He then fondled the plaintiff’s buttocks and penetrated his anus. The abuse has been admitted by the defendant.

By Summons filed in the proceeding on 24 May 2024, the plaintiff has applied to set aside the Deed pursuant to s27QD(2) of the Limitation of Actions Act 1958 (Vic) (“the Act”), so that he may bring action afresh in relation to the previously settled cause of action. The defendant seeks to maintain the effect of the 2015 Deed.

Section 27QD(2) of the Act provides that, in a proceeding to which this section applies, 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. The application to set aside a previously settled cause of action can only be made in respect of actions referred to in s27QA(2). Any set-aside order may set aside the previously settled cause of action in whole or in part.

There is no dispute between the parties that this application is one that falls within the scope of the relevant provisions. Division 5 of Part IIA applies to the cause of action, and the application is made in relation to a “previously settled cause of action” within the meaning of s27QA(2) (applying the definition in s27OA).

The limitation period “barrier” had been removed by the time the Deed was signed. The central issue in dispute was whether the settlement was actually influenced unfavourably by a single “barrier” – the Ellis defence.

Following an extensive review of the evidence the court accepted that the Ellis defence had a material influence on the plaintiff’s decision to settle his claim (at [383]). The court further held 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 (at [418]).

There was no forensic prejudice to the defendant in terms of missing witnesses or missing documents at trial if the Deed is set aside (at [430]).

Ultimately, on 28 November 2024, the Victorian County Court held that that it was just and reasonable to set aside the Deed, and, accordingly ordered, pursuant to s27QE of the Act, that the Deed be set aside in its entirety.

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