*The contents in this blog relates to legislation in New South Wales.
The New South Wales government has sought to address injustices affecting survivors who previously received a compromised settlement amount prior to the numerous legislation changes that commenced in 2016.
The Bill if passed will enact a new part to the Civil Liability Act (2002) which would allow the Courts to set aside certain past settlement agreements (pertaining to child abuse) on the basis that it would be “just and reasonable” to do so.
Many other states have created legislation that allows survivors to seek the Court’s permission to set aside their prior agreement. The NSW Bill differs from other jurisdictions in that it specifically identifies the type of settlement agreements that may be set aside, specifically matters that were resolved prior to the removal of time limitation periods in 2016 or where the settlement was against an unincorporated organisation (such as the Catholic Church).
The Bill also sets out proposed criteria that a Court may consider when determining whether it is “just and reasonable” to set aside the prior agreement:
- amount of compensation previously paid to the survivor;
- the bargaining position of each of the parties (such as whether the survivor was legally represented);
- the conduct of the parties and their legal representatives (such as whether the defendant pressured the survivor to accept a certain outcome); and
- any other matters the Court considers relevant (such as any other difficulties in the case that may have affected the compensation paid to the survivor).
It is important to note that the Bill does not allow for a Court to set aside a Deed of Release under the National Redress Scheme or an agreement where a defendant agrees to indemnify another defendant (such as where there are two responsible institutions and one has agreed to protect the other from suffering further loss or harm in the agreement).
With respect to the assessment of compensation, the Bill indicates that the previous settlement sum may be taken into account in determining the compensation sum in the new matter. Practically, this means that the Court could calculate the value of the prior settlement taking into consideration inflation and then deduct that amount from the new award of compensation.
The Bill does not prevent a settlement agreement being set aside on the basis of unconscionable conduct where a survivor was subject to a special disadvantage that the defendant took advantage of.
Do you need help?
We recognise that survivors of childhood abuse are strong individuals who deserve the right to seek compensation for the harm they have suffered. We also understand that it can be difficult to know which pathway is the right one to choose. It is important to speak with a lawyer who is experienced in institutional abuse matters prior to accepting any offer of settlement.
Turner Freeman has a number of lawyers located throughout Australia with experience in institutional abuse. We invite survivors to contact our Sydney office on (02) 8222 3333 for a confidential and obligation free discussion to help inform them as to their rights and legal options.