This judgement was the first occasion that a NSW Court had the opportunity to consider Part 1C of theCivil Liability Act 2002 (NSW) ('CLA') where the Plaintiff sought to have a prior deed set aside in a historical sexual abuse claim.
In 2007 and 2008, the Plaintiff pursued an unlitigated claim against Knox Grammar School ('Knox') alleging a 2002 isolated incident of child sexual abuse perpetrated by Mr Nisbett.
At mediation, the matter settled for $115,000 inclusive of costs. A Deed was executed by the parties whereby the Plaintiff released the Defendant from liability for any further claims against the alleged offender.
On 8 June 2022, the Plaintiff commenced proceedings against the Defendant alleging that it was directly liable in negligence or vicariously liable for the alleged offences of Mr Nisbett. The proceedings allegations were the same as those in the 2007/2008 claim.
On 27 July 2022, the filed Defence pleaded that the claim could not be maintained as the Settlement Deed discharged the Defendant from all future claims of the Plaintiff regarding the alleged abuse of Mr Nisbett.
On 25 August 2022, the Plaintiff filed a Notice of Motion seeking to have the prior deed set aside as an affected agreement pursuant to s 7D of the CLA.
The Plaintiff argued that the legal barriers at the time of the 2008 settlement were:
- An expired limitation period;
- Availability of the 'Ellis' defence; and
- That proceedings could not be commenced at the time against Knox as the Plaintiff's lawyers could not certify that the claim had reasonable prospects of success (pursuant to s347 of the Legal Profession Act 2004 (NSW)).
An affidavit served by the Plaintiff's current solicitor assessed the quantum of the claim to be around $1.8 million plus costs (or around $1 million plus costs in 2007/2008).
The Defence argued that there was no contemporaneous evidence to suggest that the defendant ever raised or relied upon a limitation defence. Further, the 2022 evidence included an affidavit of the Plaintiff's 2007/2008 legal representatives who advised against settling the claim, proving that contemporaneously the limitation issue was not considered insurmountable.
The Defence also argued, inter alia, that a certificate under s347 could not be considered a legal barrier as it cannot be pleaded as a defence to a claim, it is an ethical barrier to a legal practitioner only, does not make it just and reasonable to set aside a deed, and that the defendant's lawyers were unaware of any concerns of the plaintiff's lawyers making it immaterial to the earlier proceedings.
Weinstein J considered that at the time of the 2008 settlement, the Plaintiff and his lawyers held the view that there was a good cause of action against Mr Nisbett personally (who did not possess any real property), and that there was not enough evidence to prove Knox's negligence, but that the Plaintiff had not been compelled to accept the offer due to legal technicalities.
Ultimately, Weinstein J held that it would be unjust and unreasonable to set aside the Deed.
The Plaintiff's 2022 proceedings were dismissed.
The Plaintiff was ordered to pay the costs of the defendant's motion and proceedings.
You can view the full case here.
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