Abuse Law Case Update: GWG v Oceania Province Leader [2024 WADC 8]

GWG v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2024] WADC 8

In the recent matter of GWG v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2024] WADC 8, the plaintiff, GWG (a pseudonym), filed proceedings against the defendant, being the Province Leader of the Oceania Province of the Congregation of the Christian Brothers (“the Christian Brothers”), in relation to personal injuries sustained as a result of historical sexual abuse whilst the plaintiff was a student at two boarding schools in the late 1960s. On 30 September 2021, the plaintiff commenced a legal action against the defendant seeking damages for the consequences of this sexual abuse.

This action is listed for a 13-day trial commencing 17 July 2024.

Nearly two years after the commencement of the action, and after it was allocated trial dates, the defendant made an application for leave to amend the defence to plead that by agreement made on 11 September 2018, the plaintiff had settled his claim against the defendant (“Agreement”). At the same time, the defendant sought an order that this issue be dealt with by way of a preliminary issue or separate trial.

In the course of preparing for the mediation, further information came to light to indicate that on 11 September 2018 the plaintiff, by his lawyers at that time, had entered into a legally binding agreement to settle his claim for damages against the defendant arising from his sexual abuse whilst in the care of the defendant between 1968 and 1971 (being the Agreement). The plaintiff’s lawyers at the time were Kelso Lawyers. Documents were located confirming the Agreement, namely a Deed of Settlement and Release, outlining a settlement of $127,500.00 inclusive of costs and disbursements.

The plaintiff, however, never signed a Deed in relation to the Agreement.

In the plaintiff’s evidence, he deposes that in 2017 Kelso Lawyers started acting for him so that he could claim compensation from the Catholic Church. On a date that he cannot recall sometime in 2018, he received a telephone call from Peter Kelso of Kelso Lawyers. Mr Kelso told him that the Catholic Church had made an offer of $150,000 to settle his claim, from which he would receive approximately $120,000 after Mr Kelso had deducted his fees. Mr Kelso told him that this was the best offer he was going to get. The plaintiff was not happy with the offer. He arranged for Caz, being Ms Brown, to join the phone call. Mr Kelso told Caz what he had told the plaintiff. The plaintiff then told Mr Kelso he was fired, expressing his displeasure using expletives. He deposes that he was angry and hung up the telephone, though believed that Caz continued the call without him. Mr Kelso tried to contact him but he did not pick up the call. He deposes that he did not authorise Mr Kelso to accept any settlement offer. Nor has he told Mr Kelso or anyone else that he accepted any settlement offer. This account was corroborated by Carolyn Joy Brown, the plaintiff’s carer between 2011 and 2018.

On 20 February 2024, the Western Australia District Court ordered that [at 4]:

a. The defendant have leave to amend the defence in terms of the First Defendant’s Minute of Amended Defence dated and filed on 6 July 2023 (Minute);

b. The Minute stand as the Amended Defence without further service on the plaintiff;

c. The defendant’s application filed 11 December 2023 (Application) be otherwise dismissed;

d. By 28 February 2024, the plaintiff file and serve any reply;

e. the plaintiff have leave to amend the writ to join Kelso Lawyers as the second defendant;

f. The action be listed for directions on 25 March 2024 at 2.15 pm; and

g. The defendant pay the plaintiff’s costs of the Application in any event.

The Court provided at [86] that:

The factors against ordering a separate trial markedly outweigh the factors in favour of so ordering. Accordingly, in my view, it is neither just nor convenient for an order for a separate trial to be made. For these reasons, I declined to make the order sought.

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today. 

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