Abuse: Appellate consideration of failed application to set aside settlement.

With thanks to Greg McAlister and also to Associate Professor Tina Cockburn for noting the long awaited appellate judgment in TRG v The Board of Trustees of the Brisbane Grammar School [2020] QCA 190 (on AUSTLII).

The litigation arose from allegations of abuse of TRG by a counsellor employed by the School in about 1988. TRG retained later retained lawyers who issued proceedings on his behalf, which were settled following a mediation. An agreement was entered into and the court proceedings were discontinued by the plaintiff in 2003.

In June 2018 the appellant applied in the Trial Division for an order under subsection 48(5A) of the Limitation of Actions Act 1974 (QLD) that the agreement effecting the settlement between the appellant and the respondent in the appellant’s previous proceeding be set aside on the grounds that it is just and reasonable to do so. The trial judge refused that application (see [11] – [12]).

An appeal from that decision was refused by Fraser JA, with Morrison and Mullins JJA agreeing. At [28] Fraser JA addressed a key argument of the appellant (as to the proper construction of the section) as follows:

The statutory text considered in its context (including the extrinsic material to which the appellant referred) does not justify the claimed implication that, regardless of the kind or degree of influence of expiry of the limitation period upon the settlement, the fact that there was such an influence necessarily must be given greater weight than any factor favouring refusal of the claimed order. The use of the expression “just and reasonable” to identify the only ground for such an order, the fact that the power is conferred upon courts, and the absence of any express identification of the material factors or the relative weight or significance to be attributed to any of them, compel the conclusion that the legislative purpose encompasses account being taken of the interests of both parties to the settlement in deciding whether it is just and reasonable to set aside the settlement agreement, the relative significance or weight to be given to the material factors in that exercise depending upon a judicial assessment of the particular circumstances of each case. 

Turning then to the exercise of discretion, the appellant argued firstly that the primary judge erred in finding that the limitation issue did not materially affect the quantum of the settlement and was not a material factor in that settlement and secondly that the primary judge erred in attaching excessive weight to the fairness of the process at the mediation between the appellant and the respondent (see [32]). At  the hearing of the appeal the appellant’s senior counsel acknowledged that the mediation process was of an exemplary nature and so disavowed reliance upon ground (c) if ground (a) was not upheld.

It was noted at [47] that the primary judge concluded that the settlement of the appellant’s claim against the school occurred in a context in which, whilst the appellant had strong prospects of establishing that he suffered injury and loss as a result of sexual assaults committed upon him by (the counsellor) Lynch,  attribution of legal liability to the respondent for the actions of Lynch was problematic upon the law as it was then understood. Most of the respondent’s position paper was taken up with the arguments about liability. The argument about the limitation issue was brief (see [62]).

At [67], Fraser JA noted that in reaching the conclusion that, notwithstanding the matters upon which the appellant again relies in argument in this Court, the expiry of the limitation period was not a material factor in the appellant’s decision to settle and did not materially affect the amount of the settlement reached the primary judge also took into account his Honour’s conclusion that there were pressures upon the respondent to reach a settlement, having regard to the seriousness of the allegations against it that would be aired at a trial.

 In the context of the primary judge’s consideration of the significance of all of the potentially relevant matters, the primary judge was persuaded that the expiry of the limitation period did not materially affect the appellant’s decision to settle or the amount of the settlement. The appellant failed to establish any error in that finding, which, together with other factors that are not in issue in the appeal, led to his Honour’s conclusion that it was not just and reasonable to set aside the settlement (at [72]).