Litigation and Alternative Dispute Resolution

The High Court has recently refused to grant special leave to appeal from the decision of TRG v The Board of Trustees of the Brisbane Grammar School,¹ effectively finalising any avenue remaining for TRG to continue his pursuit for damages for personal injuries he claims to have sustained as a result of sexual abuse occurring during TRG’s time as a student at Brisbane Grammar School between 1986 and 1987.

Carter Newell’s newsletter 'In what circumstances will settlement agreements be set aside in historical sexual abuse cases?’ reviewed the original decision,² the first case to examine the newly-amended s 48(5A) of the Limitations of Actions Act 1974 (Qld) (LAA) providing the courts with discretion to set aside previously reached settlement agreements for historical child sexual abuse claims. 

Original Decision

Briefly, TRG attended Brisbane Grammar School (BGS) as a student. It was uncontentious that during this time, Kevin Lynch, school counsellor, sexually assaulted the 13-year-old TRG on numerous occasions in 1986 and 1987. 

TRG, along with a large group of other plaintiffs, settled his original claim against BGS in 2002 for $47,000, on the advice of TRG’s counsel who recommended a discount of 50% on the total assessed damages to represent the risks of litigation and limitation period issues. In 2019, TRG sought to take advantage of the new s 48(5A), seeking an order to set aside the 2002 settlement agreement to commence fresh proceedings against BGS.

Ultimately, Davis J determined that the factual circumstances of the case did not make it 'just and reasonable' to set aside the 2002 settlement agreement. When exercising the discretion conferred by s 48(5A), Davis J made it clear that the onus is on the applicant to establish that it is 'just and reasonable' to set aside an earlier settlement. He considered a wide range of factors in coming to his conclusion, including:

• the applicant’s prospects of success in any fresh proceedings; 
• the effect of the limitation period on reaching the prior settlement;
• the reasonableness of the mediation process (including whether the parties had adequate legal representation);
• the reasonableness of the settlement figure;
• the conduct of the institution in the negotiations;
• the impact of delay on any fresh proceedings;
• the potential loss of insurance; and
• any changes in the law that would materially alter the fresh proceedings. 

Read the entire article.

¹ [2020] QCA 190.
² TRG v The Board of Trustees of the Brisbane Grammar School [2019] QSC 157.