Trustees of the Marist Brothers v Barclay [2025] VSCA 297 (Link to Jade).
The primary judge had set aside the whole of a settlement agreement in relation to historical sexual abuse.
The defendant now seeks leave to appeal (and, if leave is granted, to appeal) from the judge’s orders. In summary, the defendant asserts that the judge erred in finding that the plaintiff’s decision not to make any claim for economic loss at the time of the settlement agreement was materially influenced by the existence of the Ellis defence (proposed ground 2). If that proposed ground is made out, the defendant seeks orders setting aside the judge’s order that the Deed be set aside and, in place of that order, there be an order setting aside the Deed in part only, such that the plaintiff may be ‘permitted to bring a claim for loss and damage excluding any economic loss’. ([6])
Application for leave to appeal was refused.
As was explained in DZY (HC), after her Honour delivered judgment, the plaintiff did not have to go so far as to prove that the Ellis defence materially influenced his decision not to pursue an economic loss claim. That said, proof of that matter, in circumstances where the plaintiff settled his claim with no allowance for economic loss, well-justified her Honour’s conclusion that it was just and reasonable to set aside the Deed in whole, rather than merely in part. ([73])
Even if it could be said that the plaintiff’s reason for not pursuing a claim for economic loss in 2015 was that he did not believe he had suffered any economic loss (rather than because he believed the Ellis defence posed an impediment to such a claim), any such conclusion cannot be considered in isolation. The plaintiff’s belief as to whether or not he had suffered economic loss had to be considered by the judge in the context of Mr Holdway’s evidence that he gave the plaintiff no advice on the topic because he did not believe that any claim for economic loss could be made in the restorative justice process in which he advised the plaintiff to participate. On the evidence, it was the Ellis defence which resulted in Mr Holdway failing to take instructions and give proper advice as to the existence of an economic loss claim which would have been viable but for the existence of the Ellis defence. ([79])
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