*Disclaimer: This article contains details about sexual assault/abuse which may be upsetting for some readers. Reader discretion is advised.

Amendments to the Limitations of Actions Act 1958 (Vic) (Limitations Act) permit plaintiffs, in certain circumstances, to apply for a previous settlement or judgment to be set aside, overturning the finality of settlement - this is commonly referred to as a 'set aside' or 'revisit claim'. Should a defendant rely on a prior settlement as a bar to proceedings, plaintiffs can apply to the Court seeking orders to set aside the prior settlement. 

In Victoria, the legislation asks the Court to determine whether it is "just and reasonable" to set aside the previous agreement, and "consider whether the agreement constituted a just and fair resolution of the claim made by the plaintiff". ^₁ 

In this article, we explore some of the recent judgements in Victoria, concerning applications to have prior deeds set aside.  

In 2015, the Limitations Act was amended to abolish limitation periods for causes of action arising from personal injury resulting from physical or sexual abuse committed against a person when they were a child.

In July 2018, the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Legal Identity Act) came into force , "to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to control their activities". The Act defines an NGO as a non-government organisation that is an unincorporated association or body. ² The purpose of this legislation was to update the law in relation to the Ellis defence.

In September 2019 and 2020, further amendments to the Limitations Act were introduced to allow prior judgments or settlement deeds to be set aside. Specifically, section 27QD permits an application to the Court to set aside a settlement agreement. ³

Section 27QD of the Limitations Act provides that a plaintiff may apply to the Court for a settlement agreement, and any judgment or order giving effect to the settlement of a previously settled cause of action, to be set aside.

By removing time limits in the Limitations Act, and requiring unincorporated organisations to nominate a legal entity to be sued, the legislation eliminated the primary legal impediments to litigation and broadened access to justice in historical abuse cases. The set-aside amendments further removed the finality of previous settlements.

In the recent High Court case of DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 (DZY), on appeal from Victoria, the High Court provided guidance for set-aside applications.

In determining an application under section 27QD(2), the Court must consider the facts and circumstances as they existed at the time of the original settlement — such as the existence and influence of historical legal barriers. The Court may also take into account facts and circumstances as they exist at the time of the application; for example, whether the respondent has been prejudiced due to the passage of time. ⁴

Although DZY has reset the emerging common law in this area, recent cases continue to provide insight into this evolving and complex field.

Case: DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 

Background
The plaintiff alleged he was sexually assaulted in the 1960s while attending a school operated by the Congregation of the Christian Brothers.

• In December 2012, the plaintiff entered into a deed.

• In 2015, the plaintiff entered into a further deed.

The deeds included clauses barring the claimant from any further claim for damages arising from the alleged sexual assaults. Both deeds recorded that DZY did not allege that he suffered any economic loss by reason of the alleged sexual assaults. 

Relevant legal context

• At the time of the 2012 deed, both the Limitations defence and the Ellis defence were recognised legal obstacles.

• By the time of the 2015 deed, the Limitations defence had been abolished, but the Ellis defence remained a legal barrier.

For a more detailed background on the 2012 and 2015 deeds, along with an overview of the Victorian Supreme Court proceedings (July 2021) and the Victorian Court of Appeal proceedings (April 2024), please see our previous article here.

Court's decision
The plurality of the High Court concluded that the term "just and reasonable" is of wide import and the reliance on a Limitations defence or the Ellis defence is not a pre-requisite to setting aside a prior deed.  
 
The High Court found that there was no direct evidence from DZY that, at the time he signed each of the deeds, he decided to renounce his economic loss claim due to the Limitations defence or the Ellis defence.  

For a more detailed analysis of the High Court decision, please refer to our previous article here.

Case: O’Connor v Trustees of the Christian Brothers [2025] VSC 65 (on appeal)

Background
The plaintiff was allegedly sexually assaulted by a Christian Brother and physically assaulted by other Christian Brothers and lay teachers while he was a student at St Patrick’s College in Ballarat.

The plaintiff entered into a settlement agreement in May 2017 and executed the deed in January 2018.

Relevant legal context
At the time of executing the deed, the Ellis defence was a recognised legal obstacle.

The court considered the principles outlined by the Victorian Court of Appeal in Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73, which emphasised the importance of assessing the actual influence of contemporaneous legal barriers in determining whether it is just and reasonable to set aside a settlement agreement.

Court's decision

• The Supreme Court of Victoria found that the Ellis defence was not a legal barrier that materially influenced the plaintiff’s decision to enter into the prior deed.

• The Court also found that the plaintiff had made an economic loss claim.

• The evidence demonstrated that the Ellis defence was not a material factor affecting the plaintiff’s decision.

The court found it is not just and reasonable to set aside the prior deed. The Plaintiff's application to set aside the prior deed was dismissed. 

This decision is on appeal and was delivered before the High Court handed down its decision in DZY. 

Case: Peter Damian Jens v the Society of Jesus in Australia Limited [2024] VSC 329 

Background

• The plaintiff was sexually abused by a Jesuit priest while boarding at Xavier College in the late 1960s and early 1970s.

• In August 2011, the plaintiff entered into a deed, receiving $150,000 and school fee coverage for his sons.

• A variation of the deed in December 2016 updated the school fee arrangement.

• The plaintiff later applied to have both deeds set aside under the Limitations Act.

Relevant legal context

• The original settlement deed was executed before legislative amendments removing Limitations defences.

• The variation deed was executed after the removal of the Limitations defence but before the removal of the Ellis defence.

• The plaintiff was not legally represented during the 2011 settlement, which the Court found created a significant power imbalance.

• The plaintiff submitted that he did not claim economic loss because of the legal barriers. This distinguishes the case from Pearce, where economic loss damages were explicitly contemplated (paragraph 248).

• The deed did not specify whether economic loss was included.

Court's decision
The Court found that both the Limitations defence and the Ellis defence materially influenced the plaintiff’s decision to settle.

• ​​The Court accepted the defendant’s argument that the passage of time caused prejudice, but found no material prejudice sufficient to make it unjust or unreasonable to set aside the deeds (paragraph 242).

• Regarding economic loss:

  • No material evidence was exchanged clarifying whether the settlement sum covered pain and suffering, economic loss, or both (paragraph 260).

  • It could not be inferred that the plaintiff chose not to pursue economic loss.

  • The Court accepted the plaintiff’s evidence that legal barriers impacted his decision to settle, including in relation to economic loss.

Overall, the Court found it was just and reasonable to set aside both the 2011 settlement deed and the 2016 variation deed in full, allowing the plaintiff to pursue a fresh claim, including for economic loss.

Please contact our Insurance Team if you need assistance identifying or managing any of the issues discussed above. 

References

• ^₁ DZY v Trustees of the Christian Brothers [2023] VSC 124 [98]. 

• ² Gary Pearce v Missionaries of the Sacred Heart [2022] VSC 697 [4]. 

• ³ Gary Pearce v Missionaries of the Sacred Heart [2022] VSC 697 [7] [9].  

• ⁴ DZY paragraph [106], citing WCB at paragraph [124]