The new legal landscape – historical sexual abuse claims and the effect on Deeds

Case note

Subject: Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328 and JMW1 v Salvation Army (NSW) Property Trust [2020] NSWSC 1682

The following two judgements handed down in 2020 relate to the validity of the Deeds of Release entered by victims of historical sexual abuse and taking into account the new remedial legislative amendments.

While the cases are contextually similar, the reasoning adopted by the court were markedly different given the differing facts in consideration. Ultimately, these cases show that caution should always be exercised when entering Deeds; and that the existence of remedial legislation and its enforcement is discretionary and does not guarantee that the court will set aside an otherwise lawful Deed. 

Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328

Facts and basis of claim

1. In 1977, WCB (the Plaintiff), then 11, served as an altar boy at the Warragul Catholic Church (the Church), within the Catholic Diocese of Sale (the Diocese). Father Hourigan (Hourigan) was the priest.
2. In 1996, the Plaintiff commenced proceedings in the County Court against Bishop Coffey (Coffey) regarding the abuse. It settled for $32,500+ costs. On 19 November 1996, the Plaintiff and Coffey entered into a Deed of Release (the Deed or the Settlement).
3. The Plaintiff noted that he was not pleased with the result, but understood he had a hard case to take to Court because of three significant barriers: the limitation period, the identification of a proper defendant and the terms of the Deed.
4. Since then, legislative amendments have been made removing these barriers.
5. The Plaintiff claims damages for psychiatric injury, including but not limited to severe PTSD and anxiety, as a result of the sexual abuse by Hourigan between 1977-1980.
6. The issue for the Court was whether the Deed should be set aside pursuant to ss 27QD and 27QE of the Limitations of Actions Act 1958 (the Act). 

Procedural background

The initial proceedings

7. The Primary Judge concluded that it was just and reasonable to set aside the Deed
8. In coming to his decision, the Judge noted the following:
   1. Sections  27QA and 27QE is concerned with whether, in the circumstances of the case, it is just and reasonable to set aside the settlement 
   2. An applicant seeking relief under s 27QE does not bear a separate/additional onus beyond the requirement to establish that it is just and reasonable that the discretion be exercised in their favour 
   3. Nothing in the text of s27QE limits consideration of what is just and reasonable
   4. ss27QD and 27QE were intended to benefit those who suffered personal injury from child abuse, by enabling them to bring an action for that injury, and
   5. The difficulty in identifying a proper defendant in 1996, and the expiration of the limitation period were matters which had a material impact on the County Court proceeding being settled for the sum agreed.

The appeal

9. The Court was satisfied that it was just and reasonable to set aside the Deed. 
10. While 40 years had passed since the events in question, lapse of time, issues of specific prejudice and the availability of a fair trial to the Defendant were not relevant considerations on the facts of this case. 
11. Many of the legal barriers at the time of the Deed were removed by legislation post settlement. 
12. Sections 27QD and 27QE are not focused on the lapse of time since the accrual of the Plaintiff's cause of action, but rather on whether it is just and reasonable to set aside a settlement agreement that has been previously concluded between the parties. 

JMW1 v Salvation Army (NSW) Property Trust [2020] NSWSC 1682

Facts and basis of claim

1. The Plaintiff (JMW1) sued the Salvation Army (NSW) Property Trust (the Salvos) for damages for sexual assault occurring whilst he lived at Bexley Boys' Home, a residential care institution for children conducted by the Salvos. The abuse was alleged to have been perpetrated by Captain McIver together with unnamed officers, who were residential care staff at the Home.
2. JMW1 claims he suffers chronic PTSD, mixed anxiety/depressive disorder, psychiatric injury and psychological sequelae. 
3. As a separate question, the Supreme Court considered the validity of a Deed previously entered between JMW1 and the Salvos.
4. JMW1 alleged the Deed was invalid for various reasons, including but not limited to, a failure to understand that entering the Deed would bring an end to all claims, duress by his lawyer, and a lack of sufficient legal advice

Procedural background

5. The Court found the Deed to be valid and to operate as a complete defence to the proceedings. 
6. Ultimately, the Plaintiff's original lawyers thorough file notes concerning the Deed showed that:
   1. Many appointments were made, and reminders were sent for JMW1 to be assessed by a psychiatrist for medico-legal purposes. JMW1 never attended despite being encouraged to do so for the purpose of assisting with a counteroffer. 
   2. JMW1 was informed that Court was an option, however, he was appropriately counselled of the risks, which ultimately dissuaded JMW1. 
   3. The entire Deed was read to JMW1 by his lawyer prior to singing.
   4. JMW1 was repeatedly encouraged to "sit on the Deed" and to ignore pressure from his bank, so he could get this "one offer right". 

Key takeaways

WCB was the first case since legislative amendments were made in 2019 to set aside a Deed in these circumstances. It demonstrated that the conditions surrounding the Deed are of significance; and that issues relating to and arising from the lapse of time since the accrual of the Plaintiff's cause of action is case specific and not always a relevant concern in determining whether setting aside the Deed is just and reasonable. 

The matter of JMW1 shows that, despite a deeper understanding of the impacts of legal barriers in historical sexual abuse matters, and legislative developments aimed at alleviating the effects this had on survivors' previous claims, the Court may still find the Deed to be valid and a bar to the present proceedings.

JMW1 also reinforces for legal practitioners the importance of keeping detailed contemporaneous file-notes. His Honour found that JMW1's former solicitor's file-notes established beyond any doubt that JMW1 knew exactly what was happening and the consequences of his decision.

If you have any questions on this case summary, please contact Jehan Mata.