Australia, Nov. 22 -- Supreme Court of Victoria issued text of the following judgement on Nov. 15:

1 These reasons answer two questions referred by Ierodiaconou AsJ on 22 October 2024 pursuant to r 77.04(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules). Her Honour was to hear an application by Mr John O'Connor (the plaintiff) on 23 October 2024 to set aside a settlement deed dated 15 January 2018 between the plaintiff and the Trustees of the Christian Brothers (the defendant) (the settlement deed). The two questions, raised by the defendant shortly prior to hearing, are:

(a) Does an Associate Judge have power, without a referral order, to hear an application to set aside a deed pursuant to ss 27QD and 27QE of the Limitation of Actions Act 1958 (Vic) (the Act)?

(b) Does a successful application to set aside a deed pursuant to ss 27QD and 27QE of the Act involve the grant of final or interlocutory relief?

There is no issue that the application to set aside the settlement deed was one that could be heard and determined by an Associate Judge on referral from a Judge under r 77.05 of the Rules. The issue is whether or not such an application, and the relief sought by it, is within the power of an Associate Judge absent a referral order. For the reasons that follow, I have concluded that the answers to the above questions are:

(a) Yes, in the present circumstances, an Associate Judge does have power to hear an application to set aside a deed absent a referral order; and

(b) An order setting aside a deed under s 27QE of the Act is interlocutory relief.

The substantive hearing proceeded on 23 October 2024 with the parties' consent on the basis that I would deliver these reasons before Ierodiaconou AsJ determined the matter, and if necessary would make a referral order.

B Factual background

The plaintiff alleges that in 1973, as a student at St Patrick's College Ballarat, he was physically and sexually abused by Brother Edward Dowlan (Dowlan) and physically abused by other teachers. He claims damages, including exemplary damages in respect of injuries he sustained as a result of the abuse he suffered.[1] The defendant pleads a prior claim for damages made by the plaintiff in May 2017 for unlawful sexual assault by Dowlan and physical assault by others in 1973. That claim was settled for a sum of $135,000 including legal costs and the deed of release signed. The defendant pleads reliance on the settlement deed as a legal bar to the present cause of action. Alternatively, the defendant pleads that the previous settlement sum is to be brought to account in respect of any present entitlement.[2] Accordingly the plaintiff has made an application pursuant to ss 27QD and 27QE of the Act. Those provisions are:

27QD Application to court to set aside previously settled causes of action

(1) This section applies to an action referred to in section 27QA(2).

(2) In a proceeding to which this section applies, application may be made to the court for the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action to be set aside.

(3) A court other than the Supreme Court may not set aside a judgment or an order of another court.

*Rest of the document and Footnotes can be viewed at: (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2024/708.html)

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