Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Part 8A.3 Institutional child abuse—setting aside abuse settlement agreements
114I Object—pt 8A.3
The object of this part is to provide a way, for a person who is the subject of a child abuse claim because the person suffered child abuse, to seek to have an abuse settlement agreement set aside if—
(a) when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or
(b) when the agreement is sought to be set aside the agreement is, in all the circumstances, not a just and reasonable agreement.
114J Definitions—pt 8A.3
(1) In this part:
"abuse settlement agreement" means an agreement—
(a) that settles a child abuse claim and prevents the exercise of an action on a cause of action to which the Limitation Act 1985
, section 21C (Personal injury resulting from child abuse) applies; and
(b) that—
(i) happened before the commencement of the Limitation Act 1985
, section 21C, and at a time when a limitation period applying to the cause of action had ended; or
(ii) happened before the commencement of this part, and the agreement is not just and reasonable in the circumstances.
"applicant"—see section 114K (1).
(2) For the definition of "abuse settlement agreement", a limitation period that ended at a particular time is taken to have ended even if it were possible to seek the leave of a court to extend the period at the time the period ended.
114K Court may set aside abuse settlement agreement
(1) This section applies if a person (the applicant ) is prevented from exercising an action on a cause of action because of an abuse settlement agreement.
(2) The applicant may—
(a) begin a proceeding on the cause of action in a court with jurisdiction to hear the proceeding; and
(b) apply to the court to set aside the agreement.
(3) The court may set aside the agreement if the court is satisfied that—
(a) when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or
(b) when the application is made to set aside the agreement, the agreement is, in all the circumstances, not a just and reasonable agreement.
(4) The court may consider the following in deciding whether to set aside the agreement:
(a) the amount paid to the applicant under the agreement;
(b) the bargaining position of the parties to the agreement;
(c) the conduct of the following people in relation to the agreement:
(i) a party other than the applicant;
(ii) a legal representative of a party other than the applicant;
(d) any other matter the court considers relevant.
(5) The Evidence Act 2011
, section 131 (1) (Exclusion of evidence of settlement negotiations) does not prevent evidence being adduced in a proceeding begun under this section, even if the evidence is of a communication made, or a document prepared, in connection with an attempt to negotiate a settlement of the dispute to which the agreement relates.
114L Court may also set aside other things
(1) If the court decides to set aside an abuse settlement agreement under this part, it may also set aside any of the following that gives effect to the agreement:
(a) a contract, deed or other agreement;
(b) an order or judgment of the court or of a lower court.
(2) However, the court must not set aside the following:
(a) a deed of release signed by or on behalf of the applicant in acceptance of an offer under the national redress scheme and an agreement relating to a relevant prior payment that has been taken into account in the offer;
(b) an agreement to the extent to which—
(i) the agreement settled a cross-claim between 2 or more defendants; or
(ii) one defendant indemnified another;
(c) a contract of insurance.
(3) In this section:
"national redress scheme "means the National Redress Scheme for Institutional Child Sexual Abuse established under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018
(Cwlth), section 8.
114M Effect of setting aside abuse settlement agreement
(1) A court may set aside an abuse settlement agreement or anything else in accordance with this part only to the extent that it relates to the applicant.
(2) An agreement and anything else set aside in accordance with this part is void but only to the extent that it relates to the applicant.
(3) An amount paid, including legal costs or disbursements, or other consideration given under the agreement—
(a) is not recoverable despite the agreement being void; and
(b) may be taken into account by a court in deciding damages in a proceeding on a cause of action to which the agreement relates.