In the recent matter of Warrick (a pseudonym) v Trustees of the Christian Brothers [2025] VSC 520, the plaintiff, Roland Warrick (a pseudonym), brought proceedings against the defendant, the Trustees of the Christian Brothers, seeking personal injury damages in relation to historical sexual abuse. 

In 1984, whilst the plaintiff was a student at St Leo’s College in Box Hill, he was sexually abused by his English teacher, who was also a Christian Brother. The College was operated by the St Patrick’s Province of the Congregation of the Christian Brothers.  In September 2015, the plaintiff accepted an offer of settlement from the defendant, the Trustees of the Christian Brothers, for the sum of $250,000 inclusive of costs (“the settlement sum”) and signed a settlement agreement (“the deed”). This deed released the defendant from any further claims by the plaintiff in respect of the abuse. 

On 27 May 2024, the plaintiff commenced proceedings in the Victorian Supreme Court, claiming damages against the defendant for the abuse.  In a defence dated 9 August 2024, the defendant pleads, amongst other things, that the plaintiff’s claim is barred by virtue of the deed. 

At the time of the plaintiff’s abuse, under the LAA, a claim for damages by a person abused as a child, was required to be issued within six years of their 18th birthday. Failure to issue within this time period would ordinarily result in a defendant pleading a limitation defence, which, absent an extension of time being granted, prevented the recovery of damages. 

Furthermore, there was often difficulty identifying the appropriate legal entity to sue in institutional abuse proceedings. On 24 May 2007, the New South Wales Court of Appeal delivered its judgment in Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis. In that case, the plaintiff alleged that, between the ages of 13 to 18 years, he was sexually abused by an assistant priest of the Roman Catholic Church. The plaintiff sued the Archbishop of Sydney, and the Trustees of the Church. The Court held that at common law, an unincorporated association cannot sue or be sued in its own name, because, among other reasons, it does not exist as a juridical entity. This gave rise to what was commonly referred to thereafter as the Ellis defence. 

On 1 July 2015, the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) commenced operation which removed the limitation period for actions founded on the death or personal injury of a person who suffered sexual or physical abuse, or psychological abuse arising out of sexual or physical abuse, whilst a child, regardless of when the abuse occurred. 

On 1 July 2018, the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (the Legal Identity Act) commenced operation. The stated purpose of this Act was ‘to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities’. The Legal Identity Act abolished the Ellis defence by closing the legal loophole which prevented child abuse plaintiffs from suing such unincorporated organisations who lacked the requisite legal identity to be sued. 

In recognition of the potentially unfair settlement agreements reached between victims of child abuse and defendant organisations, including as a result of a limitation defence and the Ellis defence, the Victorian parliament passed legislation which gave the Court power to set aside a previous judgment or settlement if it is just and reasonable to do so. Initially this was limited to claims previously barred or settled prior to 1 July 2015, however, a further amendment extended this power to claims settled prior to 1 July 2018. 

In its analysis, the Court provide as follows at [65] to [69]:  

Having regard to the whole of the evidence, the parties’ submissions, and applying the principles outlined above, I have concluded the deed should be set aside. 

In so deciding, I have considered the following factors which tend against the granting of such relief: 

the plaintiff was represented by legal practitioners (including counsel) experienced in institutional abuse claims; 

Waller Legal’s contemporaneous notes record the identification of some risks for the plaintiff as to the quantum of the damages he would recover, which were unrelated to any barrier created by a possible Ellis defence.  I consider it probable the plaintiff’s legal advisors informed the plaintiff of at least some of these risks on the day of the settlement conference.  I consider it further probable such advice as to risks on quantum would have, in part, informed and influenced the plaintiff’s decision to accept the offer of settlement; 

during the open session at the settlement conference  (at which the plaintiff was not present) the defendant did not raise the Ellis defence, and instead indicated it would identify an entity for the plaintiff to sue; and 

the defendant made allowances to ensure the plaintiff was not under any undue influence at the time he entered into the deed. 

However, against those matters, I have considered the following factors which positively support a determination that it is just and reasonable to set aside the deed. 

Some of the tendered records demonstrated Waller Legal was aware of the defendant’s intention to cooperate with plaintiffs in the identification of an entity to sue and not to rely upon the Ellis defence.  However, there was nothing in writing to Waller Legal advising there was an entity, which would be indemnified, in respect of the plaintiff’s potential common law claim.  Thus I do not accept the defendant’s submission there was a failure by the plaintiff’s legal team to adequately advise the plaintiff in respect of this. 

The plaintiff was advised in writing on two occasions of the legal barriers to his damages claim, that being a limitation defence and the Ellis defence. The plaintiff was also advised by telephone, on at least one occasion of the ongoing existence of these legal barriers. In Waller Legal’s letter dated 26 August 2015, sent to the plaintiff whilst he was considering the offer of settlement, he was advised about the statutory abolition of the limitation defence. This letter was silent in respect of the Ellis defence.   

Ultimately, on 27 August 2025, the Victorian Supreme Court ordered as follows at [77] to [78]:  

On the evidence before me, and for the reasons given, I am satisfied that, pursuant to s 27QE of the LAA, it is just and reasonable to set aside the deed. 

I will hear from the parties on the form of orders. 

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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