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Limitation Periods and Setting Aside Settlements for Child Sexual Abuse: Royal Commission Review

23/06/22
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December 2022 will mark five years since the close of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) and the release of its final report. The end of 2022 is also the timeframe by which the Commonwealth, each state and territory and certain institutions must provide their final progress report on their implementation of the Royal Commission’s recommendations.

To observe the significant impact that the Royal Commission has had on schools and the forthcoming five-year anniversary of its closure, we are writing a series of articles over the course of 2022, exploring the Royal Commission’s recommendations and their implementation throughout the country.

This is the third article in the series, and it will explore the impact of the Royal Commission’s recommendations in relation to civil litigation claims for historical child sexual abuse, with a focus on limitation periods and previously settled claims.

 

The Royal Commission’s Recommendations on Limitation Periods for Civil Claims of Child Sexual Abuse

The Royal Commission made recommendations that would make it easier for claimants to sue institutions in negligence for historical child sexual abuse. These recommendations included:

  • removing ‘limitation periods’ on making this specific type of civil litigation claim (that is, the removal of time limits, often referred to as the ‘statute of limitations’, which prevent civil claims from being made after the time limit has expired)
  • removing limitation periods for all past cases, even if they were subject to a limitation period in the past
  • ensuring that limitation periods were removed as soon as possible.

In the past, limitation periods that applied to personal injury actions (the category that child sexual abuse claims usually fell in to) were three years from when the injury itself occurred (although for injuries sustained as a child, this period was generally suspended until the person turned 18, meaning that a civil action for child abuse had to be commenced by 21 years of age). Most jurisdictions allowed courts to extend this limitation period through the exercise of the court’s discretion.

Many survivors of child sexual abuse, survivor advocacy and support groups and academics told the Royal Commission, and other research shows, that the short limitation period was a significant barrier for survivors of child sexual abuse to seek redress for their injuries through civil litigation due to several factors:

  • on average, it takes a survivor 22 years to disclose abuse, and men take longer than women to disclose abuse
  • the application to the court to extend the period of time to bring the claim is of itself time-consuming and expensive, and is often unsuccessful for the survivor seeking the extension
  • the nature of the injury sustained by survivors of child sexual abuse is often psychological, rather than physical, making it difficult to pinpoint when the injury was sustained, and therefore difficult to determine from when the time limit to commence proceedings begins.

The Royal Commission extensively considered the advantages and disadvantages of extending or removing limitation periods for claims for child sexual abuse, including the competing interest of not delaying proceedings, and any prejudice to the defendant’s ability to defend a historical claim (due to a lack of witnesses, documentary evidence and/or other factors).

The Royal Commission recommended the removal of the limitation period by all states and territory governments as soon as possible, but it also recommended that the amended laws explicitly preserve the existing discretions of courts to stay proceedings (that is, to stop a claim from being considered by a court, either for a limited time or forever) if a fair trial is not possible.

 

State and Territory Approaches to Limitation Periods: Addressing the Recommendations

Removal of Limitation Periods for Child Sexual Abuse and Other Types of Child Abuse

All states and territories have amended ‘Limitation of Actions’ legislation to remove limitation periods for past, present and future claims of institutional child sexual abuse, and have preserved the courts’ discretion to stay proceedings, in line with the Royal Commission’s recommendations.

There are some differences between the states and territories about the types of ‘child abuse’ covered by the removal of limitation periods, with some limiting the abuse covered to child sexual abuse (which was the limit of the Royal Commission’s Terms of Reference), and some applying the removal of limitation periods to claims for other types of child abuse.

The table below sets out the relevant legislation for each state and territory and which types of abuse the removal of limitation periods applies to.

 

State/Territory Removal of Limitation Period Legislation Type of Child Abuse Covered
Australian Capital Territory Limitation Act 1985 (ACT) section 21C Sexual abuse (defined as an offence or conduct of a sexual nature).
New South Wales Limitation Act 1969 (NSW) section 6A, schedule 5 clauses 8–10 Sexual abuse, serious physical abuse, or any other abuse perpetrated in connection with sexual abuse or serious physical abuse (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).
Northern Territory Limitation Act 1981 (NT) sections 5A, 53–5 Sexual abuse, serious physical abuse or psychological abuse that arises from the sexual abuse or serious physical abuse.
Queensland Limitation of Actions Act 1974 (Qld) sections 11A, 48 Sexual abuse or serious physical abuse or psychological abuse perpetrated in connection with sexual abuse or serious physical abuse.
South Australia Limitation of Actions Act 1936 (SA) section 3A, Legislative History (transitional provisions) Sexual abuse, serious physical abuse or psychological abuse related to sexual abuse or serious physical abuse.
Tasmania Limitation Act 1974 (Tas) sections 5B, 5C, 38 Sexual abuse or serious physical abuse (including any psychological abuse that arises from the sexual abuse or serious physical abuse).
Victoria Limitation of Actions Act 1958 (Vic) Part IIA Division 5 Physical abuse or sexual abuse and psychological abuse (if any) that arises out of the physical or sexual abuse.
Western Australia Limitation Act 2005 (WA) sections 6A, Part 7 Division 1 Sexual abuse.

 

Previously Barred and Settled Claims for Child Sexual Abuse or Child Abuse

The position of plaintiffs who have not yet commenced any civil litigation for child sexual abuse or child abuse is relatively clear under the above legislation, i.e. there is no limitation period that applies to their claim in any state or territory. However, each state and territory has a different approach to whether causes of action that were already in various stages of litigation prior to the removal of the limitation period for child sexual abuse or child abuse claims (referred to as ‘previously barred causes of action’) can be brought before a court.

‘Previously barred causes of action’ can include circumstances in which:

  • a child abuse cause of action had commenced in court, but was discontinued or not finalised before the commencement of the removal of the limitation period legislation
  • a judgment was given that the child abuse cause of action was ‘statute barred’ before the commencement of the removal of the limitation period legislation
  • a child abuse cause of action was dismissed by the court before the commencement of the removal of the limitation period legislation, on the ground that the action was statute barred.

Some jurisdictions have also gone further than the Royal Commission’s recommendations on limitation periods by creating laws allowing courts to set aside previous settlements, so that plaintiffs can make new and more just claims. Below is an overview of the current approach in each jurisdiction.

 

New South Wales

Claims for child abuse that were previously barred can, in certain circumstances, be brought before a court in New South Wales under schedule 5, clause 10 of the Limitation Act 1969 (NSW), including where the case was previously dismissed on the grounds that a limitation period applying to the cause of action had expired.

In addition, since late 2021, claims that had previously been settled may now be set aside by a court in certain circumstances under the Civil Liability Amendment (Child Abuse) Act 2021 (NSW), which inserted a new Part 1C into the Civil Liability Act 2002 (NSW).

Part 1C allows a settlement agreement to be set aside, where it is just and reasonable to do so, if it was:

  • made prior to the removal of the limitation period (in 2016), and was also subject to an expired limitation period at the time
  • made prior to the commencement of Part 1B (in 2018) with the involvement of an unincorporated organisation, that would have otherwise been liable had Part 1B been in force at the time
  • made prior to the commencement of Part 1B (in 2018), and the agreement is not just and reasonable in the circumstances.

To determine whether it is just and reasonable to set aside the settlement agreement, the court can consider:

  • the amount paid to the plaintiff
  • the respective bargaining positions of the parties
  • any relevant conduct of the defendant/s and their legal representatives
  • any other matter the court considers relevant.

The court can also look at ‘without prejudice’ communications between the parties and/or their legal representatives which would usually be prohibited by the Evidence Act 1995 (NSW).

Courts however cannot set aside agreements under the National Redress Scheme, or certain agreements between defendants or insurers.

The intention of the changes is to enable plaintiffs to apply to set aside eligible settlement agreements, and not to provide an opportunity for defendants and/or their insurers to do so.

Additional information regarding the NSW approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

Victoria

As at 18 September 2019, the Children Legislation Amendment Act 2019 (Vic) amended the Limitation of Actions Act 1958 (Vic) (Limitation Act Victoria). Under sections 27QA(1) and 27QC of the Limitation Act Victoria, the revival of previously barred claims are possible if the claim is not related to a deed of release or an accepted offer of redress under the National Redress Scheme. Sections 27QA(2) and 27QE of the Limitation Act Victoria also allow previously settled claims to be revived, if it is “just and reasonable”.

The Supreme Court judgment of WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) (2020) was the first case that considered these amendments to the Limitation Act Victoria. In that case, Justice Keogh set aside a deed of settlement entered into in 1996 between the Plaintiff and the Catholic Diocese of Sale in respect of alleged sexual abuse by a priest of the diocese in the late 1970s. Justice Keogh found that the settlement sum ($32,500) was significantly less compensation than the amount that the Plaintiff may have received, had he not been faced with the issue of the limitation period for his claim having expired.

Additional information regarding the Victorian approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

Australian Capital Territory

Claims for child sexual abuse that were previously barred and/or settled cannot currently be brought before the court in the ACT. However, the Justice and Community Safety Legislation Amendment Bill 2022 (ACT) was introduced to the ACT Parliament on 9 June 2022 and is currently before the Legislative Assembly. If passed in its current form, this would change ACT law so that it is more in line with the recommendations of the Royal Commission.

Additional information regarding the ACT approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

Queensland

Claims for child abuse that were previously barred can, in certain circumstances, be brought to court in Queensland, under section 48(2)–(5) of the Limitation of Actions Act 1974 (Qld). Such circumstances include among other things where legal action was started but not finalised, or where an action was dismissed due to the expiry of the statute of limitations.

Since 1 March 2017, claims that were previously settled can be revived in Queensland if the court finds it just and reasonable to do so, under section 48(5A)–(5C) of the Limitation of Actions Act 1974 (Qld).

Additional information regarding the Queensland approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

South Australia

The Limitation of Actions (Child Abuse) Amendment Act 2018 (SA) Schedule 1 clause 3, took effect on 1 February 2019. It amended the Limitation of Actions Act 1936 (SA) to allow previously barred causes of action to commence, in various circumstances including where legal action had started but not been finalised or was discontinued, or where a previous time limit on making a claim had expired.

In addition, the Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021 (SA) received assent on 9 December 2021, but is yet to take effect. This Act will amend the Civil Liability Act 1936 (SA) to allow the revival of an action for previously settled claims, if the court finds it is just and reasonable to do so, under Part 7B.

Additional information regarding the South Australian approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

Tasmania

Currently, there is no legislation allowing previously barred claims to be made in Tasmania. However, legal action may be brought in relation to a previously settled claim if the court finds that it is “in the interest of justice” to do so, under section 5C of the Limitation Act 1974 (Tas).

On 24 May 2022, the Premier of Tasmania also announced the Government’s intention to review Tasmania’s civil litigation system, to ensure a more trauma-informed approach. The statement was made in the context of an ongoing Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings.

Additional information regarding the Tasmanian approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

Western Australia

On 1 July 2018, the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA) took effect. This inserted sections 91–92 of the Limitation Act 2005 (WA). It allows legal action to be taken for previously barred and previously settled claims for child sexual abuse in specific situations, such as where an applicable limitation period on the claim had already expired before the amending law took effect.

Additional information regarding the Western Australian approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

Northern Territory

On 15 June 2017, the Limitation Amendment (Child Abuse) Act 2017 (NT) took effect. This law inserted Part V, Division 2 of the Limitation Act 1981 (NT). It allows previously barred and previously settled claims for child sexual abuse to be revived in certain circumstances, such as where a past court judgment was made on the basis that a limitation period applying to the claim had expired.

Additional information regarding the Northern Territory approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

Authors

Karen Zeev

Karen is a Legal Content Consultant, Child Safeguarding at CompliSpace. Karen has worked at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in the Reportable Conduct Directorate, and at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer where she was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has a background as a commercial litigation lawyer and holds a bachelor’s degree in Arts/Law (Hons).

 

Jaclyn Ling

Jaclyn is a Legal Content Associate at CompliSpace. A recent graduate from Macquarie University in Sydney, she holds a double Bachelor's degree in Commerce and Law (Honours).

 

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