Setting aside historical abuse settlements – “just and reasonable” contrasting approaches

I refer to my earlier post about the Queensland decisions in TRG v The Board of Trustees of the Brisbane Grammar School [2019] QSC 157 (TRG) and by the Court of Appeal in TRG v The Board of Trustees of the Brisbane Grammar School [2020] 190 (TRG appeal).

The question of “just and reasonable” in setting aside historical sexual abuse agreements has been further considered in JAS v The Trustees of the Christian Brothers [2018] WADC 169; BC201840778 (JAS) and WCB v Roman Catholic Trusts Corp for Diocese of Sale (No 2) VSC 639; BC202009497 (WCB). Both decisions emphasised the intent of parliament and the ‘mischief’ to be corrected by the amendments. In WCB, apart from the limitation defence, the ‘Ellis’ defence was central to the determination and the amendments and parliamentary intent to remove it – Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (VIC).

Queensland, Victoria, and Western Australia all use the touchstone phrase of “just and reasonable” to determine if a historical abuse settlement should be set aside. However, the Queensland courts approach is in stark contrast to the other jurisdictions.  Feel free to message me for a copy of the paper.

David Cormack

Brisbane Barrister and Mediator

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