Child abuse settlements to be set aside where it is ‘just and reasonable’

The NSW Government has introduced significant changes in the civil liability landscape, with the introduction of the Civil Liability Amendment (Child Abuse) Bill 2021. The introduction of this bill follows significant reform in both 2016 and 2018, as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse. The reforms in 2016 included the removal of limitations placed on child abuse claims and in 2018 introduced a requirement that a proper defendant be appointed for claims brought against unincorporated organisations.

The newly introduced bill aims to provide survivors of child abuse a clear pathway for access to justice. The bill, as per s7D(2), provides ‘the court may set aside an affected agreement if it is just and reasonable to do so’. In addition, s7D(3) provides non-exhaustive list of considerations the court may take into account. It is unclear how the courts will interpret ‘just and reasonable’. However, it is apparent that by applying this test, it allows the courts to implement broad principles and assess each case based on a variety of relevant factors.

Survivors who were forced into inadequate settlements, or were pressured by impending limitation periods, will now have the opportunity to apply to have the previous settlement agreement set aside under this new bill.

Information about the Bill is available online.

Scott Eveleigh

McAuley Hawach Lawyers

11 Fennell Street, Parramatta NSW 2124

Telephone: (02) 9633 1826

Facsimile: (02) 9687 8114 (02) 9687 8114

Web: www.mcauleyhawach.com.au

Email: reception@mcauleyhawach.com.au

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