EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490

Supreme Court New South Wales

Medium Neutral Citation: EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490 Hearing dates: 01 – 03 May 2023 14 July 2023 Date of orders: 02 May 2024 Decision date: 02 May 2024 Jurisdiction: Common Law Before: Weinstein J Decision: (1) The plaintiff's Notice of Motion is dismissed. (2) The plaintiff is to pay the defendant's costs of the motion. (3) Proceedings number 2022/00165865 are dismissed. (4) The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement to some other costs order. (5) Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs. Catchwords: CONTRACTS – Application to set aside deed of settlement under Pt 1C of the Civil Liability Act 2002 (NSW) – Where plaintiff previously entered into deed of settlement in relation to historical sexual abuse claim – Where parties agree that the deed of settlement is an affected agreement – Whether it is just and reasonable to set aside deed of settlement – Where plaintiff was advised not to settle his claim – Where legal barriers were not material to plaintiff's decision to settle his claim STAUTORY INTERPRETATION – Legislative purpose – Remedial legislation – Extrinsic materials – Second reading speeches – Retrospective legislative amendment removing barriers to child abuse claims – Determining purpose and effect of legislative amendments – Consideration of similar legislation in other jurisdictions – Whether it is just and reasonable to set aside deed of settlement – Whether requirement to certify reasonable prospects of success under s 347 of the Legal Profession Act 2004 (NSW) is a legal barrier under Pt 1C of the Civil Liability Act 2002 (NSW) Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), Ch 8A, Pt 8A.3, s 114I Civil Liability Act 1936 (SA), Pts 7A, 7B Civil Liability Act 2002 (NSW), Pts 1B, 1C, ss 6F, 6H, 7A, 7B, 7C, 7D, 7E, 7F Civil Liability Act 2002 (Tas), Pt 10C Civil Liability Act 2002 (WA), Pt 2A Civil Liability Act 2003 (Qld), Pt 2A Civil Liability Amendment (Child Abuse) Bill 2021 (NSW) Civil Procedure Act 2005 (NSW), Pt 4, s 64 Criminal Procedure Act 1986 (NSW), s 294 Evidence Act 1995 (NSW), ss 63, 67, 192 Evidence Regulation 2020 (NSW), reg 4 Interpretation Act 1987 (NSW), ss 33, 34 Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) Legal Profession Act 2004 (NSW), s 347 Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 cl 4 Limitation Act 1969 (NSW), ss 6A, 11, 18A, 52, 60C, 60E Limitation Act 1974 (Tas), ss 5B, 5C Limitation Act 1981 (NT), ss 5A, 53, 55 Limitation Act 1985 (ACT), s 21C Limitation Act 2005 (WA), ss 6A, 91, 92 Limitation of Actions Act 1936 (SA), s 3A Limitation of Actions Act 1958 (Vic), Pt IIA Div 5, s 27P Limitation of Actions Act 1974 (Qld), ss 11A, 48 Personal Injuries (Liabilities and Damages) Act 2003 (NT), Pt 3A Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 28.2, 31.5, 33.4, 35.2 Wrongs Act 1958 (Vic), Pt XIII Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 DZY (a pseudonym) v Trustees of the Christian Brothers [2023] VSC 124 Gary Pearce v The Corporation of the Society of the Missionaries of the Sacred Heart [2022] VSC 697 Gett v Tabet (2009) 109 NSWLR 1 JAS v Trustees of the Christian Brothers (2018) 96 SR (WA) 77; [2018] WADC 169 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at 509; [2013] HCA 35 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 Re Credit Tribunal; Ex parte General Motors Acceptance Corp, Australia (1977) 137 CLR 545; (1977) 14 ALR 257 Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234 at 264; [2020] VSCA 328 Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440; [2020] QCA 190 TRG v The Board of Trustees of the Brisbane Grammar School [2021] HCATrans 92 Trustees of the Roman Catholic Church for the Archdioceses of Sydney v Ellis (2007) 63 ACSR 346; [2007] NSWCA 117 Wacando v Commonwealth (1981) 148 CLR 1; (1981) 37 ALR 317; (1981) 56 ALJR 16; [1981] HCA 60 Walsh (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2024] ACTSC 81 WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639 WPM v Trustees of the Christian Brothers [2020] WADC 112 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 March 2021 Category: Procedural rulings Parties: EXV (Plaintiff) The Uniting Church in Australia Property Trust (NSW) (Defendant) Representation: SE McCarthy and JB Masur (Plaintiff) L Gyles SC and H Chiu (Defendant)