Walsh (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2024] ACTSC 81. (Link to JADE).
This was an application under ACT law to set aside a 2006 deed of release on the basis that it was not a just and reasonable agreement. It required interpretation of the Civil Law (Wrongs) Act 2002 (ACT), part 8A.3, in particular section 114K(3). That subsection provides that a court may set aside an agreement if when the agreement was made there were legal barriers to the person being fully compensated or in all the circumstances (when an application is made to set aside the agreement) it is not a just and reasonable agreement. The term legal barriers is not defined by the Act.
First limb – Legal barriers
In relation to legal barriers the court held at [197]:
For all of those reasons, I am of the view that “legal barriers” includes potential defences and remedies (being reasonably, in the sense of non-fancifully, available to a defendant) whether they are notified by a putative defendant to the plaintiff or not.
Second limb – Not a just and reasonable agreement
The court noted at [217] that the subsection directs attention to whether the agreement is just and reasonable, not whether it is just and reasonable to set aside the agreement. In this respect, the ACT legislation differs from that in all other domestic jurisdictions.
The Court may take into account the amount paid to the applicant under the agreement, the bargaining position of the parties to the agreement, the conduct of a party other than the applicant, and the conduct of a legal representative of a party other than the applicant: ss 114K(4)(a)-(c) of the Wrongs Act. Matters occurring after the agreement may also be taken into account if relevant to assessing whether an agreement is not just and reasonable.
Outcome
In relation to the first limb, the court held that the limitation period which existed at the time of the Deed was a legal barrier. Also identified as barriers were the difficulty in identifying the proper defendant and the then law regarding vicarious liability for intentional torts.
In relation to the second limb, the court held that the Release, in all of the circumstances, was not a just and reasonable agreement (at the time the application was made). The plaintiff was not legally represented before he signed the Release. He was not advised of rights he may have had at the time, and perhaps more importantly, he received no independent advice as to the potential quantum of his claim.
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