Following the recommendations made by the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, significant reforms were made in 2016 and 2018 to remove barriers to seeking civil justice for survivors of child abuse. The reforms abolished limitation periods for child abuse cases, and required proper defendants to be appointed for cases against unincorporated organisations, eliminating the Ellis defence.

However, prior to these reforms, many survivors accepted nominal or inadequate settlement offers due to legal technicalities, such as statute-barred claims or the absence of a proper defendant.

All Australian States have enacted laws that grant courts the power to overturn historical deeds under specific circumstances. Recent case law has shed light on how courts approach this issue by examining the interpretation of relevant legislation and the factors influencing decisions to overturn such deeds.


One of the earliest cases to test these provisions was WCB v Roman Catholic Trusts Corp for Diocese of Sale (No 2) [2020] VSC 639. In this case, the Supreme Court of Victoria set aside a deed from 1996, after carefully considering the proper interpretation of relevant provisions under the Limitation of Actions Act 1958 (Vic). The court analysed various factors, including prejudice to the defendant, statutory provisions, discretion, and concerns related to abuse of process. As a result of this analysis, it was determined that the settlement in the deed did not provide sufficient compensation to the plaintiff and that there were improved prospects of success since 1996.

Other cases like DZY v Trustees of the Christian Brothers [2023] VSC 124, Williams v State of Victoria [2022] VSC 456 and Pearce v Missionaries of the Sacred Heart [2022] VSC 697 have highlighted the courts' readiness to set aside deeds based on the influence of limitation issues on settlement decisions.

Victoria has demonstrated a willingness to set aside deeds based on a plaintiff's perception of barriers to their claim. The courts have emphasised that the plaintiff's belief at the time of settlement regarding limitation or Ellis defence can be a crucial factor.

Western Australia

WCB case was followed by WPM v Trustees of the Christian Brothers [2020] in the Western Australia District Court. The plaintiff in this case had been subjected to abuse and had previously entered into settlement agreements with the Christian Brothers in 2009 and 2014 based on the understanding that pursuing a legal claim was impossible due to limitations on the timeframe for filing. However, the court set aside the deeds, enabling the plaintiff to maintain his compensation claim.


In Queensland, the courts have indicated that a settlement agreement may be set aside if legal barriers, such as an expired limitation period, had a "material influence" on the plaintiff's decision to settle and on the settlement amount. In TRG v Board of Trustees of the Brisbane Grammar School [2020] 5 QR 440, the court upheld the decision of the primary judge not to set aside a settlement agreement from 2002, where an expired limitation period was found to be immaterial to the settlement.

Although all Australian jurisdictions have now implemented similar legislation to allow the setting aside of deeds, there is currently no developed case law in New South Wales, ACT, Tasmania, South Australia, and the Northern Territory.

As the legal landscape continues to evolve, this established case law emphasises the need for careful examination of past settlements and the potential risks Australian institutions and their insurers face in relation to these claims.