Barclay v Trustees of the Marist Brothers [2024] VCC 1859

Author: Evelynn Wang

Facts of the case:

Between 1970 and 1974, the Plaintiff, Mr Barclay attended St Colman’s College, Shepparton, which was then operated by the Marist Brothers. In 1971, when he was approximately 14 years old, he was subjected to sexual abuse by John Skehan, a Marist Brother and teacher at the College.

In 2015, the Plaintiff pursued a claim for personal injury damages against the Trustees of the Marist Brothers, and entered into a Deed of Settlement in the sum of $165,000. In August 2023, he commenced further proceedings in the Victorian County Court, seeking damages against the Marist Brothers, on the basis of alleged negligence and vicarious liability arising from a non-delegable duty of care.

The Marist Brothers admitted to the abuse and did not contest that they owed a duty of care. However, they relied upon the existence of the earlier Deed, arguing that it operated as a bar to the Plaintiff’s claim. As a result, the Plaintiff applied to have the Deed set aside in May 2024 so that he could commence fresh proceedings without being encumbered by the compromised settlement sum of the Deed.

Pursuant to s 27QE(1)(a) of the Limitation of Actions Act 1958 (Vic), the Court may set aside a prior deed of settlement where it is satisfied that it is “just and reasonable” to do so. Where that threshold is met, the Court is required to set aside the settlement agreement.

The Decision:

Her Honour, Judge KL Bourke held that Mr Barclay had settled his claim at a significant undervalue and that, were the Deed to be set aside, he would likely recover damages substantially exceeding the original settlement sum. She found that in 2015, the legal barriers were “insurmountable” and meant that Barclay could not succeed in a litigated claim against the Marist Brothers.[1] One such barrier was the Ellis defence, which was overturned in 2019, but previously held that churches could not be sued as they did not exist as a juridical entity.[2]

As a result, her Honour found that Mr Barclay’s only real choice at the time was to accept whatever sum was offered by the defendant.[3] Considering those circumstances, she was satisfied that it was just and reasonable to set aside the Deed. On 28 November 2024, her Honour ordered that the Deed be set aside pursuant to s 27QE of the Limitation of Actions Act 1958 (Vic) and the portions of the Marist Brother’s defence relying on the Deed as a bar to the proceedings were struck out.

Appeal by the Marist Brothers

Trustees of the Marist Brothers v Gregory Paul Barclay [2025] VSCA 297

The Marist Brothers sought leave to appeal the decision of the primary judge, contending that the she has erred in setting aside the settlement agreement in its entirety. However, the Court held that her Honour had correctly concluded that Mr Barclay had “settled at undervalue”, noting in particular that his decision had been materially influenced by the existence of the Ellis defence at the time. [4] The Court affirmed that it was appropriate to conclude that it was “just and reasonable” to set aside the Deed in full and leave to appeal was denied.

Practical Impacts

Plaintiffs who settled historical abuse claims against institutions prior to legislative amendments may now have a viable pathway to revisit those settlements.

 

 

[1] Trustees of the Marist Brothers v Gregory Paul Barclay [2025] VSCA 297, [40] (‘Barclay’).

[2] Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor [2007] NSWCA 117.

[3] Barclay (n 1) [40].

[4] Ibid [70].