In a significant decision regarding historical child sexual abuse claims in Australia, the Supreme Court of Victoria has permitted a former altar boy to proceed with his claim for compensation against the Catholic church despite receiving a prior settlement in 1996.
This Court formed this view on the basis that it was “just and reasonable” in the circumstances to set aside the previous settlement.
From 1977 to 1980, an altar boy with Warragul Catholic Church (referred to throughout the case and in this article as ‘WCB’) alleges that he was repeatedly sexually abused and “shockingly raped” by Mr. Daniel Hourigan (‘Hourigan’). Hourigan worked at the time as a priest in the Catholic Church, within the Catholic Diocese of Sale (‘the Diocese’).
As is common for victims of child abuse, due partly to feelings of shame and guilt, WCB did not disclose the abuse to anyone in his life until adulthood.
The Police Charges
On 15 September 1995, as police became aware of the allegations, Hourigan was charged with numerous offences including indecent assaults, rape, sexual penetration of a person 10-16 years of age and gross indecency. This was in respect of several alleged victims including WCB.
The matter did not proceed as Hourigan committed suicide on 18 September 1995, just 3 days later.
The 1996 Compensation Claim
In June 1996, WCB, through his local lawyer, made a claim seeking compensation for injuries sustained because of his childhood abuse. Unfortunately, as was later highlighted during the Royal Commission into Institutional Responses into Child Sexual Abuse 2016, the law at the time raised legitimate impediment to persons such as WCB wishing to claim and recover damages for child abuse.
Firstly, child abuse survivors were required to make a claim within six years of their 18th birthday. For WCB, this period expired in October 1989 and as such an application for an extension of time was required. Further, plaintiffs were unable to pursue an unincorporated association (other than a partnership) as such associations could not be sued in their own name.
This led to difficulty in finding a proper defendant as Hourigan’s supervisor was named defendant despite only becoming supervisor after the abuse had occurred. Indeed, WCB’s counsel at the time informed him that he had a hard case.
In late 1996, the proceeding settled as the Catholic Church agreed to pay $32,000.00 to WCB. The Settlement Deed contained the following clauses:
8. In consideration of Coffey entering into this deed, [WCB] agrees and warrants that he shall make no further claim for damages or compensation arising out of the matters the subject of the allegations in the statement of claim.
9. This deed may be pleaded by any of the parties and by the Roman Catholic Diocese of Sale its servants and agents, in bar to any action, claim or demand now or hereafter commenced or made by any person arising out of or connected with the facts or circumstances the subject of this proceeding or its subject matter.
The Current Compensation Claim
Following the Royal Commission in 2016, every state and territory abolished the statutory limitation period for compensation claims arising from historical sexual abuse. New changes were also implemented to allow WCB to name the Diocese as the proper respondent.
In December 2018, following 40 years of serious post-traumatic stress disorder, WCB lodged a fresh claim for compensation.
What about the previous Deed?
The key issue before the Supreme Court in this case was whether the previous Deed from 1996 in fact barred the Claimant from making a fresh compensation claim. Indeed, the law in Victoria allows the court to set aside previous judgments if it is “just and reasonable” to do so.
In order to understand the meaning of “just and reasonable”, His Honour Keogh J considered the second reading speech to the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) in which the Minister for Child Protection stated in reference to the reforms:
“In determining what is just and reasonable a court can take into account a number of considerations, informed by the Royal Commission. Many survivors of child abuse were not able to obtain justice even with independent legal representation, because of the barriers to civil litigation which existed at the time and the conduct of institutions at the time to deny responsibility for abuse and exploit legal loopholes. As a result, many survivors accepted inadequate compensation and entered into deeds of release… Where survivors faced significant disadvantage in pursuing compensation due to legal barriers such as the statute of limitations, the Ellis defence, or the deficiency of the law regard the duty of care and organisations, settlements entered into should be set aside in the interests of justice, to allow victims to obtain compensation which is deemed adequate by today’s standard.”
His Honour Justice Keogh of the Victorian Supreme Court held that, in the circumstances, it was just and reasonable to set aside the previous deed of settlement. As such, WCB was permitted to continue his fresh claim for compensation – currently set for trial on 18 November 2020.
What does this mean for Queensland?
The Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) contains a very similar provision to the relevant Victorian decision. Subsection 48(5A) provides:
“An action may be brought on a previously settled right of action if a court, by order on application, sets aside the agreement effecting the settlement on the grounds it is just and reasonable to do so”. (emphasis added)
Interestingly, however, a recent 7 September 2020 decision from the Queensland Supreme Court of Appeal refused to set aside a previous settlement of $47,000 plus costs. In this instance, the trial judge found the previous settlement from October 2002, “was a fair settlement reflecting the factual and legal strengths and weaknesses of the parties’ respective cases properly assessed at that time by them”.
This serves as a stark reminder that each case will turn on its own facts and ultimately the court’s view of what is “just and reasonable” in the circumstances.
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 WCB v Roman Catholic Trusts Corporation for the Diocese of Sale  VSC 639, .
 Limitation of Actions Act 1958 (Vic)s 27P.
 Legal Identity of Defendants (Organisational Child Abuse) Act 2018, s 7.
 Limitation of Actions Act 1958 (Vic)s 27QC.
 Victoria, Parliamentary Debates, Legislative Assembly, 15 August 2019, 2695-6 (Luke Donnellan, Minister for Child Protection, Minister for Disability, Aging and Carers).
 TRG v The Board of Trustees of the Brisbane Grammar School  QCA 190.