Rosario (A pseudonym) v Trustees of the Christian Brothers [2026] VSC 512 (Link to JADE).
This is another example of an application to set aside a prior settlement agreement, in which the plaintiff was ultimately successful. The allegations were of sexual and physical abuse.
As apparent from the catchwords, the issues included whether the plaintiff had an erroneous belief concerning the application of the Ellis defence, the risk of permanent stay and whether the Court can consider the plaintiff’s erroneous beliefs in deciding whether it is just and reasonable to set aside the earlier agreement.
An interesting though perhaps ultimately unclear comment appears at [110] in relation to a potential cross defendant’s attendance at an informal settlement conference:
His decision to settle did not appear to be impacted by the prospect of Farrell attending the ISC. He was supported at the ISC by his legal representatives, as well as his wife. There is unequal bargaining between an individual, even if legally represented, and an institution such as the Christian Brothers. The disparity of bargaining position between the parties is evident from the Christian Brothers’ possession of Prof Dennerstein’s report, which noted, among other things, that Mr Rosario suffered from chronic PTSD, and the last‑minute indications that they would involve Farrell in the ISC, in order to obtain a contribution from him toward the settlement, coupled with the indications that he was impecunious. There may not have been mala fides on the Christian Brothers seeking to involve Farrell; however, it highlights the disparity between the parties that they would propose that Farrell, who sexually abused Mr Rosario, would be part of the ISC. It was certainly not a trauma-informed approach.
[BillMaddensWordpress #2570]