Mitchell v Comensoli [2026] VSC 17 (Link to Jade).
This was another disputed application to set aside an abuse settlement Deed, under Victorian law. Ultimately the Deed was set aside in full.
The court noted that while (at the time of the Deed) there was no longer any limitation period (by reason of recent reforms), the Ellis defence was still available to the first defendant. The court also noted that a stay of proceedings could have been ordered as the High Court GLJ decision had not been handed down.
There was no prejudice to the first defendant arising from the elapse of time or the loss of evidence of a sufficient nature or degree to weigh against setting the deed aside.
The court concluded at [46]:
It is clear in this case that, at the time of settlement, the plaintiff faced (and believed she faced) significant legal barriers to her claim arising from her sexual abuse as a child. The prospect of the Church relying on the Ellis defence was a material factor, but additionally, she faced the risk of the Church seeking a permanent stay of her proceeding, if issued, because of the passage of time and the resultant loss of evidence, including the death of key witnesses. Whilst I accept that the risks that faced her in establishing negligence also influenced her decision to settle, that was not the primary or dominant consideration. Having regard also to the inadequacy of the settlement sum, I consider that it is, in all the circumstances, just and reasonable to set aside the deed.
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