The Plaintiff alleged sexual abuse by a priest (Bradford) whilst a student boarder at Xavier College in Melbourne in 1968 – 1972. The Defendant was on notice of the claim since 2008. In 2011, the Plaintiff met with Bradford in the company of other Jesuit Priests. Bradford admitted to abusing the Plaintiff.
The Plaintiff had previously released the Defendant from any future claims relevant to the Bradford abuse in a settlement deed dated 22 August 2011 and a variation deed dated 9 December 2016. The total compensation of both deeds was around $261,000. The question at law was whether it was just and reasonable to set aside the settlement deeds, wholly or in part.
The Defendant submitted that the settlement deeds were not eligible to be set aside. In the alternative, the Defendant submitted that the settlement deeds were not eligible to be set aside in so far as they relate to any claim for economic loss. The Plaintiff obtained a forensic accountant report that concluded his pecuniary loss was between $1,229,239 and $4,932,755. If the Deeds were set aside, the value of the claim would materially change.
Evidence indicated that at the time of both settlements, the Plaintiff did not understand the differences between the heads of damages. In his sworn affidavit, he recounted that he had been given general legal advice at the time concerning the applicability of Ellis defence1 and the statute of limitations. However, the Plaintiff chose to approach the Defendant on his own. He was not legally represented at either settlement conference.
Associate Justice Ierodiaconou was critical of the Defendant's conduct in so far as:
- The Defendant did not ensure the plaintiff was adequately supported or informed in his negotiations.
- The Defendant took no steps to ensure that the Plaintiff knew the Defendant would not rely on the legal barriers.
- The Defendant did not disclose any information regarding prior complaints.
- The Plaintiff was not encouraged to make a complaint to the Police.
- Father Head (who was in charge of the Professional Standards Office) met with the Plaintiff on several occasions. He provided pastoral care to the Plaintiff. However, in that capacity, he was also serving the Defendants interests in the deed negotiations. It was further unclear what information he had about abuse by Bradford.
Ultimately, it was concluded that legal barriers at the time materially impacted on the Plaintiff entering a settlement deed. Associate Justice Ierodiaconou considered that the Defendant had not identified any material prejudice to the Deeds being set aside. Accordingly, it was just and reasonable to set aside the 2011 deed and 2016 variation deed.
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Footnote
1 To read more about the Ellis Defence, see: Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117
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