Authors: Rebecca Stevens, Partner, Sarah Tuhtan, Senior Associate & Lucy Harris, Law Graduate
The recent decision of TRG v Board of Trustees of the Brisbane Grammar School [2019] QSC 157. is the first case to consider the newly-amended s 48(5A) of the Limitations of Actions Act 1974 (Qld) (LAA) that confers the courts with the discretion to set aside previously reached settlement agreements for historical child sexual abuse claims.
Under the previous s 11 of the LAA, the limitation period for personal injuries would bar action by prospective applicants at the expiration of three years after the relevant sexual abuse occurred. However, in 2016 s 11A was introduced, which alleviates any and all limitation periods for child sexual abuse claims. Section 48 operates as a transitional provision for previously determined matters, and provides under s 48(5A) that the court has discretion to set aside settlement agreements where it is 'just and reasonable to do so'. The onus is upon the applicant to demonstrate it is 'just and reasonable' to disturb the status quo and set aside the judgment or settlement.
The legislative intent of s 48(5A) was to grant the court the power to redress previously determined matters and settlements where there was evidence of:
- high-handed behaviour by institutions;
- summary dismissal by institutions of claims which would have good prospects but for the limitation defence;
- unequal bargaining power between the institutions and victims of abuse; claims being settled for a nominal sum, or discounted heavily for the limitation contingency; and
- generally unfair settlements.
The overall purpose of s 48(5A) is to balance the interests of the applicant in setting aside the settlement agreement and therefore commence fresh, more favourable proceedings against the interests of the respondent in maintaining the settlement and avoiding further litigation.
This balance, appropriately struck, is the essence of 'just and reasonable'.
