Published: 27 August 2019
Author: Ian Dallas
New Victorian law allows abuse victims to overturn unfair financial payments
There is good news for survivors of child sexual abuse in Victoria. Survivors who settled legal claims in the past will soon have the opportunity to seek a fairer outcome.
The history of unfair and token settlements for child sexual abuse is well known. However, legislation has now been presented to the Victorian Parliament which will allow courts to “set aside” or overturn many of those old settlements and court judgement where it is “just and reasonable” to do so.
In practice this means that the small amounts paid by the Catholic Church under its Melbourne Response and Towards Healing schemes, as well as matters settled with other religious and government institutions, schools or other bodies, are likely to be overturned.
The new law will apply only to those settlements or judgments made before 1 July 2015, as this is the date when time limits in claims of child sexual abuse were abolished in Victoria.
The legislation does not set out in any detail the meaning of “just and reasonable”. The Explanatory Memorandum states that the court’s discretion to decide what is just and reasonable in each case allows for the court to apply broad principles and take into account any relevant factors. Matters that are likely to be taken into account might include:
- Whether the survivor was legally represented at the time;
- The amount of the settlement, with smaller settlements being more likely to be set aside (but note a WA decision, JAS v Christian Brothers (2018) overturning a settlement of $100,000);
- Whether the process adopted by the institution in resolving the claim, was fair;
- Whether the institution relied on the operation of the limitation period in reducing the amount paid. In most cases, this will have been a factor.
It is clear that the circumstances of each case will be considered carefully.
While the legislation gives a court power to set aside a judgement or deed of release, in practical terms it will not usually be necessary for a Court application to be made. RCT Law anticipates that most institutions will recognise where past settlements have been inadequate, and will be prepared to reassess those settlements without the need for a Court application.
Similar legislation is already in operation in WA and Queensland. The experience in those States indicates that court applications are a rarity. However, the few court decisions in those states will be of assistance to Victorian courts, and it is expected that the words of Chief Judge Sleight of the WA District Court in a recent case will be a guide to Victorian courts:
“...the broad intention of the amending Act [is] to remove legal barriers to claimants commencing an action and having their claims decided on their merits.”
The changes to the Victorian law are anticipated to be made quite soon, as they are currently progressing through Parliament.
RCT Law encourages survivors who settled their claims in the past for small amounts to seek legal advice about pursuing a further claim as soon as possible.