Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328 (available on AUSTLII) saw the Court of Appeal of the Supreme Court of Victoria called upon to revisit a decision to set aside a 1996 Deed of Release regarding a claim for damages for child sexual abuse.
Leave to appeal was required but refused in a single judgment of the Court (Beach, Kaye & Osborn JJA).
The decision is quiite detailed. In broad terms the Court held that “at the time at which the plaintiff entered into the settlement agreement in 1996, his claim for damages was confronted by two obstacles, comprising the effluxion of the prescribed period of limitation, and the absence of any recognised legal entity against whom he might successfully claim those damages. Both of those obstacles have been recognised by Parliament, in recent times, to be unfair and unjust, and have been abrogated by statute. By taking that circumstance into account in construing s 27QE, the Court is not, thereby, giving impermissible retroactive effect to the legislation” (at [115]).
The Court was also asked to review considerations of delay and prejudice to the defendant in concluding whether it was just and reasonable to satisfy the settlement agreement (at [119]), In that regard it is perhaps important to note the Court’s comment at [125]:
While the judge expressed the view — with which we disagree — that such prejudice was not a relevant consideration in determining an application under ss 27QD and 27QE, nevertheless his Honour considered that question, and concluded the effects of delay and the loss of evidence were not such as to make it likely that the trial of the proceeding would be unfair to the defendant,,,,
The prejudice issues were reviewed by the Court in detail, with its conclusion at [153] referring to material prejudice:
It may be accepted that, as a result of the effluxion of time, the defendant may be at a disadvantage in resisting the claims made on behalf of the plaintiff. However, as the foregoing analysis reveals, the defendant has not been able to identify any material prejudice by reason of which it would not be just and reasonable for the Court to set aside the Deed concluded by the parties in 1996. Accordingly, we are not persuaded that the judge erred by holding that the defendant had not been relevantly prejudiced by the lapse of time or the consequential loss of evidentiary sources.