DZY v Trustees of the Christian Brothers [2023] VSC 124 (on Jade).
The plaintiff has commenced a proceeding in negligence and vicarious liability against the Trustees of the Christian Brothers (defendant). He seeks damages for the injury, loss and damage caused by alleged abuse, including damages for economic loss.
The defendant filed a defence in the proceeding in which it does not admit the abuse but admits that in 2017 Brother Best was convicted of one count of indecent assault relevant to the abuse on the plaintiff. The defendant relies on the terms of two previous settlement agreements (Deeds) as a bar to the plaintiff’s proceeding.
The plaintiff filed an application under s 27QD and s 27QE of the Limitation of Actions Act 1958 (Vic) to set aside the Deeds to the extent they are a bar to his current proceeding.
The defendant submitted that the Court should set aside only part of the Deeds, which would allow the plaintiff to continue his proceeding but not his claim for economic loss. The plaintiff argued that the Court should set aside the whole of the Deeds so that he can continue to pursue the entirety of his current proceeding, including his claim for economic loss.
The defendant submitted that the plaintiff’s instructions to his lawyers not to pursue an economic loss claim were motivated by a desire to shield the plaintiff from the possibility that he would have to use some of the settlement to repay Centrelink and that this demonstrates that his motivation for not pursuing an economic loss claim was unrelated to either the limitations period issue or difficulty in nominating a viable defendant. ([119])
The plaintiff submitted that it is reasonable to infer that the plaintiff’s desire to protect all of the settlement sum from a possible Centrelink repayment was, at least in part, motivated by the modest settlement sum involved. That sum, submitted the plaintiff, was directly related to the issues around the expiry of the limitation period and the Ellis defence the plaintiff’s case faced. While that may have been the case, the plaintiff’s evidence was not to that effect. His evidence was that he could not recall all of the content of his conversations with his lawyers on the day of the settlement conference, that he accepted his lawyers’ advice and that he felt he had no choice but to accept the defendant’s offer because the legal barriers his case faced were too great. ([120])
The court said at [124]:
The plaintiff’s instructions not to pursue his economic loss claim should be viewed against all of the circumstances. In my view it is not possible to find that the limitations and the Ellis defence issues had no material influence on the plaintiff’s decision not to pursue his economic loss claim.
The court held that it was just and reasonable to set aside the whole of the Deeds.
The outcome in this matter can be contrasted with that in Pearce v Missionaries of the Sacred Heart [2022] VSC 697, however in Pearce the plaintiff never instructed his solicitor to pursue an economic loss claim. This was communicated by Pearce’s solicitor to the solicitor for the defendant in that case in writing well before the settlement conference. In this case the plaintiff pursued his economic loss claim up until the day of the settlement conference.
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