A leading South East Queensland law firm is calling on the Queensland Government to review 2016 legislation to give victims of institutional sexual abuse the opportunity to seek fair compensation.

The call comes after the High Court of Australia on Thursday, 20 May, 2021, refused a survivor of child sexual abuse codenamed TRG, leave to appeal in his bid to reopen a compensation claim against Brisbane Grammar School.

TRG, represented by Queensland-based law firm, McNamara Law, sought to have a deed of release set aside to allow him to renegotiate his damages claim for abuse he was subjected to at the age of 12 and 13 by prolific paedophile, Kevin Lynch, who worked at the school from 1973 to 1988.

Following the findings of the 2013 Royal Commission into Institutional Response to Child Sexual Abuse, Queensland became the first State in Australia to repeal time limits on civil actions for child sex abuse, when in 2016, the Queensland Government amended the Limitation of Actions Act (Qld) to include section 48(5a).

The Act now provides ‘an action may be brought on a previously settled right of action if a Court, by order on application, sets aside the agreement effecting the settlement on the grounds it is just and reasonable to do so’.

In 2018, TRG became the first Lynch victim to test this amendment to the Act by seeking an order from the Queensland Supreme Court to set aside his 2002 settlement of just $47,000, and thereby allowing him to pursue further damages from Brisbane Grammar School.

However, the Respondent submitted, and it seems presiding Justice Peter Davis preferred, that the Brisbane Grammar School would suffer prejudice (that would not be fair and reasonable) if the settlement agreement was set aside, due to the issues relating to the credibility of former headmaster Dr Max Howell, who swore an affidavit in 2002 to say he had known nothing of Lynch’s abuse, and the vicarious liability of the Brisbane Grammar School raised during the Supreme Court proceedings.

This is in part because Dr Howell, who died in 2011, was no longer available to test the evidence referred to in the Royal Commission case study of two witnesses, one former student and the parent of another, who said Howell had explicitly been told of the abuse as early as 1980.

“We had submitted to the High Court that there is a clear injustice, one which stems from the same underlying injustice which the Royal Commission identified and all State and Territory legislatures, including Queensland, changed the law to accommodate.” said Joshua Brown, Senior Associate at McNamara Law.

Saul Holt QC, submitted to the High Court, with which McNamara Law agree, “Statutory policy underlying these amendments to the Limitation Act was intended to do something extraordinary – profoundly different from that which had always been the policy”.

It was intended to undo these matters because they were influenced by something now known to be fundamentally unfair.

“This finding of the High Court demonstrates the underlying flaw in the Queensland legislation. The Government had failed to define the meaning of the words ‘just and reasonable’, and left it open to the Court to determine the words as broadly as possible,” said Mr Brown.

“This means the competing interests of the Respondent, where they say it would be unfair to them to set aside the settlement agreement, are as equal to, or weighed more than, those interests of the victims of childhood sexual abuse.

“It is unlikely that any victim in Queensland will successfully set aside a settlement agreement, unless the Queensland Government were to more precisely craft the amendments to the limitation period so as the interests of the victims outweigh the perceived unfairness to the Respondent.

“McNamara Law call on the legislators to resolve this injustice, so that the intent of the removal of the limitation period can be achieved,” said Jeremy Bruce, Director at McNamara Law.

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