RNT -v- THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE [2026] WADC 53

[2026] WADC 53 [2026] WADC 53 (AC) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : RNT -v- THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE [2026] WADC 53 CORAM : MACLEAN DCJ HEARD : 10 APRIL 2025 DELIVERED : 23 JUNE 2026 FILE NO/S : CIVO 79 of 2024 BETWEEN : RNT Applicant AND THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE Respondent Catchwords: Interpretation - Masters v Cameron - Binding agreement - Just and equitable to set aside deed Legislation: Limitations of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) -- 1 of 39 -- [2026] WADC 53 [2026] WADC 53 (AC) Page 2 Result: Orders granted in terms of originating summons dated 15 May 2024 Representation: Counsel: Applicant : Ms L D Coci Respondent : Mr D J Bayly SC Solicitors: Applicant : Slater & Gordon - Perth Respondent : HWL Ebsworth Lawyers (Perth) Case(s) referred to in decision(s): Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 Bird v DP (a pseudonym) [2024] HCA 41 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 Kezchek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 856 Masters v Cameron (1954) 91 CLR 353 Prince Alfred College Incorporated v ADC [2016] HCA 37 Sinclair, Scott & Company Ltd v Naughton (1929) 43 CLR 310 Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2022] NSWSC 144 Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440 TRG v The Board of Trustees of the Brisbane Grammar School [2019] QSC 157 Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3] [2012] WASCA 157 -- 2 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 3 MACLEAN DCJ: 1 The applicant (RNT) by originating summons dated 15 May 2024 seeks orders: 1. Pursuant to 11A(1) and 48(5A) of the Limitation of Actions Act 1974 (Qld), the Applicant have leave to commence an action for damages for historical child sexual abuse suffered by her. 2. The respondent be joined as the third defendant to the proceeding numbered CIV 5845 of 2023. 3. The Deed of Settlement and Release entered into between the Applicant and Respondent on or around 24 February 2017 be set aside to the extent that such an agreement would otherwise be a bar to the Applicants child sexual abuse cause of action. 4. The costs of and incidental to this application be in the cause of the child sexual abuse action. 5. Such further or other order as the Court may deem appropriate. 2 RNT is the plaintiff in proceedings brought against the State of Queensland and the State of Western Australia. The relief claimed in this originating summons includes that the Anglican Church (the Church) be joined as the third defendant to those proceedings. 3 RNT signed a deed of release (the Deed) with the Church on 2 March 2017. The Deed, simply put, recorded an agreement by RNT not to pursue the Church for claims, including those contemplated in the existing proceedings, on payment to her of an agreed amount. 4 There is no issue that RNT signed the Deed, and that she did so after negotiation, between her and the Church, in which she was legally represented. There is no issue that RNT received the payment. 5 The issue in this hearing is whether the Deed can be set aside. 6 The court only has jurisdiction to set aside the Deed if the agreement affecting the settlement was reached before 1 March 2017. 7 This requires resolution of these questions: 1. Can the court conclude that the parties had, as a matter of fact and law, reached a binding agreement before 1 March 2017? -- 3 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 4 2. Further even if the court concludes that a binding agreement was reached before 1 March 2017, can the court set aside the Deed, which was signed by RNT on 2 March 2017? 3. If the answers to questions 1 and 2 are yes, would it be just and reasonable to set aside the Deed? 8 The Church opposes the application to set aside the Deed. It says it was executed by RNT on 2 March 2017 and there is no power to do so. 9 RNT says that by 3 February 2017 a binding agreement had been reached between the parties. 10 Section 48(5A) of the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) (the Act) allows a court to set aside an agreement in some circumstances. If the agreement was made after 1 March 2017 a court does not have power to set an agreement aside. 11 On a simple view the answer appears obvious. A deed was prepared following negotiations. Promises were made, a document was signed, and money was paid. However, as the exchange below demonstrates a simple view might not be correct.1 MacLEAN DCJ: … I mean, the usual practise is that everyone sits down at an informal conference; 'Here's the deed. Here's the cheque or the promise to pay the cheque within a reasonable time of the deed.' I mean, the deed really marks the agreement, doesn't it? That's the usual practise. … COCI, MS: Well, Masters v Cameron wouldn't exist if that was the usual practise. And it's not really a matter of whether or not it is the usual practise in this case that was followed. It's a question of looking objectively at the correspondence and the circumstances of the case; was an agreement formed; would either parties have a mutual intention to create legal relations by 3 February? And we say that it does. 12 So there it is. 1 ts 52 and ts 53. -- 4 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 5 13 RNT filed three affidavits in support of the originating summons. They are the affidavit of 10 May 2024 (applicant's first affidavit), the affidavit of 11 July 2024 (applicant's second affidavit) and the affidavit of 5 March 2025 (applicant's third affidavit). 14 RNT also filed written submissions of 15 May 2024 and 5 March 2025. 15 The Church filed submissions of 1 April 2025 and relied on the affidavits of Rodney James McLary and Roisin Ann McNulty, each dated 31 March 2025. 16 Significant correspondence with regard to the issue of whether the parties reached a binding agreement prior to 2 March 2017 are: • Mr McLary's letter of 9 January 2017, by which the Church offered to settle the claim. • RNT's former solicitors acceptance letter of 3 February 2017. • The Church letter of 7 February 2017. • RNT's former solicitors letter dated 24 February 2017 to RNT enclosing the Deed. • Mr McLary's letter dated 7 February 2017. • Time task report of 15 February 2017. • Email from Ben Oberhardt of the Church to RNT's former solicitors dated 15 February 2017. • Time task report 22 February 2017. Record of telephone conversation between Arthur Chandler and the Church about legal costs. • Time task report 16 February 2017. Telephone conversation between Arthur Chandler and RNT as to the status of the claim.2 17 The essence of the first affidavit was that the Deed was entered into on or around 24 February 2017. 2 Certainly, RNT considered the matter settled. She was asking, 'when will I get paid?'. -- 5 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 6 18 RNT deposed:3 21. In or around late February 2017, I signed the Deed. To the best of my recollection, I signed the Deed in Brisbane, at the offices of Murphy Schmidt Solicitors. Attached to this affidavit and marked 'RNT-5' is a true copy of the Deed entered into between the Applicant and Respondent on or around 24 February 2017. 22. At the time I signed the Deed, I was not aware of any legal action that I could commence to claim damages for the abuse I suffered at the hands of the nun and the house mother. 19 RNT further deposed:4 I was not aware of any limitation period, and the inability, prior to 1 March 2017, to bring a claim for damages for historical child sexual abuse. As such, the limitation period that was in place prior to 1 March 2017 did not factor into my decision to accept the terms of the Deed. 20 Annexed to the applicant's first affidavit as annexure RNT-5 was the Deed said to be entered into on or around 24 February 2017. 21 On its face the Deed appeared to be undated, however, at the hearing RNT and the Church agreed that the Deed was in fact executed on 2 March 2017. 22 RNT's belief as to the date on which the Deed was signed does not determine when the previously barred right of action was settled. 23 In her second affidavit RNT deposed:5 9. I refer to paragraphs 18 to 24 of my First Affidavit. 10. At the time I signed the Deed, I was unaware of the Royal Commission and the outcomes of that Royal Commission. 11. Murphy Schmidt Solicitors did not discuss the Royal Commission with me at all. 12. Murphy Schmidt Solicitors prepared an impact statement on my behalf, which I reviewed and signed, which is attachment RNT-4, referred to below. 13. Other than the preparation of the impact statement, to my knowledge Murphy Schmidt Solicitors did not do any other work in terms of analysing the strengths and weaknesses of my case against the Anglican Church and did not provide me with any advice on those matters. 3 Applicant's first affidavit, pars 21 and 22. 4 Applicant's first affidavit, par 32. 5 Applicant's second affidavit, pars 9 - 14. -- 6 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 7 14. On or around 24 February 2017, I received a telephone call from Arthur Chandler, a then trainee solicitor of Murphy Schmidt Solicitors. I recall that in that discussion, Mr Chandler advised me to accept the offer of redress made by the Anglian Church in their letter of 9 January 2017. Mr Chandler said to me words to the effect that I would risk losing money, if I did not accept the offer of redress. I cannot recall the reason why he said that to me. Mr Chandler did not advise me to make any counter offer to the Anglican Church in response to their initial offer. Nor did he advise me to take up their offer to participate in a mediation. I thought I had no other choice than to accept the offer made by the Anglican Church. 24 In her third affidavit RNT clarified that the Deed was signed on 2 March 20176 but that the binding agreement was made in February 2017. 25 Her position was:7 Having reviewed the Murphy Schmidt Documents, I now recall that an agreement to resolve my claim against the Anglican Church was reached between us by 3 February 2017. The relevant correspondence from the Murphy Schmidt Documents leading up to that agreement is as follows. 26 Her evidence is set out below:8 19. On 3 February 2017, Murphy Schmidt sent a letter to the Anglican Church communicating my acceptance of $80,000. Attached to this affidavit and marked 'RNT-12' is a true copy of the letter from the Murphy Schmidt to Anglican Church dated 3 February 2017. 20. On 7 February 2017, the Anglican Church sent a letter to Murphy Schmidt confirming the agreement. Attached to this affidavit and marked 'RNT-13' is a true copy of the letter from the Anglican Church to Murphy Schmidt dated 7 February 2017. 21. On 24 February 2017, Murphy Schmidt sent a letter advising me that my claim against the Anglican Church had been resolved and enclosing a copy of a Deed of Release, formalising the agreement to settle my claim. By this letter, I understood that my claim was finally resolved. Attached to this affidavit and marked 'RNT-14' is a true copy of the letter from Murphy Schmidt to [RNT] dated 24 February 2017. 6 See Applicant's third affidavit, par 6. 7 Applicant's third affidavit, par 7. 8 Applicant's third affidavit, pars 19 - 22. -- 7 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 8 22. On 2 March 2017, I called Mr Chandler about the Deed of Release. Attached to this affidavit and marked 'RNT-15' is a true copy of the Murphy Schmidt file note dated 2 March 2017. 27 Mr McLary was employed by the Church as the Director of Professional Standards, with varying job descriptions between the years 2004 - 2014 and 2016 - 2022 or 2023. 28 Mr McLary: • was to assist the bishop in resolution of claims within Anglican organisations in the diocese; • was familiar with the firm of solicitors that represented RNT and understood them to be an experienced firm representing many clients in matters of this kind; • understood that on 1 March 2017 the Act was enacted and had the effect of removing the limitation period for historical child sexual abuse claims in Queensland; • was aware that the removal of the statutory limitation period to bring damages for claims of this kind was coming for some time before the Act came into force; and • was not directed to either finalise any of the relevant claims before the change to the Act nor to delay the finalisation of any claim. 29 In her supplementary submissions, RNT was careful to distinguish between the initial submissions which asserted her claim for financial redress against the Church was resolved by way of a Deed as opposed to a more nuanced view that her claim for financial redress against the Church was resolved by way of the binding agreement made on 3 February 2017 when her then solicitor accepted the offer on her behalf and invited the Church to provide the Deed.9 30 RNT asserts that the Church referred to recommendations of the Royal Commission in its letters dated 28 December 2016 and 9 January 2017.10 9 See Plaintiff's supplementary submissions dated 5 March 2025, par 24. 10 Plaintiff's submissions dated 16 July 2024, par 50. -- 8 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 9 31 RNT asserts that the references together with the timing of the binding agreement being executed,11 namely being executed one month before the State of Queensland enacted legislation removing the limitation period, allows for an irresistible inference to be drawn, namely that the Church was keen to resolve RNT's claim before she was able to commence an action in negligence against it. 32 On the available evidence I cannot draw this inference. RNT was represented by solicitors. It seems, having regard to the McLary Affidavit, to have been reasonably discernible by professionals managing claims brought by people claiming financial redress against or for child sexual and physical abuse, that the legislation to remove the limitation period was imminent.12 33 If the inferences suggested were irresistible, the motivation to resolve the claim ought to have been equally evident to RNT's former solicitors. 34 Equally likely is the fact that both parties wished to resolve the claim, and both considered the claim had been resolved by 3 February 2017, and certainly by 7 February when the Church told RNT's solicitor a Deed would be prepared and forwarded as soon as possible.13 The Deed was to be simply a restatement of the agreement in fuller or more precise terms but not different in effect or form. 35 Further the motivation ascribed to the Church does not sit consistently with the fact that the Deed was sent before 1 March 2017 and leaving open the potentiality of RNT to claim SNAP, on signing the Deed, and undoing the Church's careful time keeping. The Deed appears to have been sent to RNT undercover of her solicitors' letter of 24 February 2017. Inferentially the Deed must have been sent to the solicitors before 1 March 2017. 36 I do not have to find a motivation on the part of the Church to resolve the claim before RNT was able to commence an action in negligence against it. However, it is clear that the Church took steps to resolve the claim before 1 March 2017. 11 In the primary submissions the binding agreement described as 'the deed being executed'. 12 See McLary Affidavit, pars 11 - 12. 13 Applicant's third affidavit, Attachment RNT-13, page 25. -- 9 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 10 37 The Church noted that the application was originally premised on the submission that the Deed was executed on or around 24 February 2017. Nothing turns on this change of premise. RNT gave evidence of signing the Deed in late 2017. This evidence was in her first affidavit.14 In that affidavit RNT was recalling a mundane event of seven years previous. By the applicant's third affidavit and after having had the benefit of reviewing her former solicitors' documents, she was able to say that she signed the Deed on 2 March 2017.15 38 It is hardly surprising that RNT got the date wrong as to when she first remembered signing the Deed. Nor is it surprising that her position changed after seeing the solicitors file note. What is important is the Deed was provided before 1 March 2017 and was returned unchanged, but for execution, after 1 March 2017 as this sits consistently with a binding agreement being reached before 1 March 2017. 39 Had the Deed been signed on 24 February 2017, then clearly an application pursuant to s 48(5A) of the Act would have been open. 40 On the available evidence there is no suggestion the timing of the execution of the Deed was in any way related to the date on which the change to the law became operative. 41 Mr McLary's affidavit stated:16 16 The manner in which I dealt with the claims that I was handling did not change in the lead up to the change to the Act. I continued to assess the merits of these claims on behalf of the Diocese as I had for the duration of my time in this role. 17 I followed the same standard approach of the Diocese in dealing with the claims that I handled, which was once a claim was received, I would review the brief of documents and prepare a recommendation to the General Manager in relation to the merits and quantum of the claim, who signed off my recommendation. 18 I engaged directly with the claimant or the claimant's solicitor, and I was largely left to manage the claims myself, engaging with the General Manager as and when necessary. 42 I accept this evidence. 14 Applicant's first affidavit, par 21. 15 Applicant's third affidavit, par 6. 16 Affidavit of Rodney James McLary sworn 31 March 2025 (McLary Affidavit), pars 16 - 18. -- 10 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 11 43 The delay in executing the Deed appears to have been informed by a delay by RNT in signing and returning the Deed, and the short time RNT had to do so. As demonstrated by the date of RNT's former solicitors' letter enclosing the Deed, 24 February 2017, together with the absence of any advice as to the potential utility in signing the Deed before 1 March 2017. The absence of any advice also sits consistently with a finding that the binding agreement had already been reached. 44 Mr McLary gave evidence that he refreshed his memory by reviewing correspondence, as referred to in the affidavit. 45 He understood from 24 December 2016 that the diocese would accept RNT's claim and commenced communications with her solicitors to resolve her claim. 46 On 28 December 2016 he prepared a recommendation to the general manager of the diocese. 47 Following an approval from the general manager, Mr McLary made an offer to settle the claim on 9 January 2017.17 Apart from the offer of compensation, no other terms were set out in the letter. 48 In the letter Mr McLary told RNT's then-solicitor: • He had been appointed by the Bishop to assist him in the resolution of requests for financial redress for child sexual abuse. • The Bishop had accepted his recommendation for an offer of redress to RNT. • We would like to offer RNT redress of $80,000. • Set out the Royal Commission framework and said: If [RNT] accepts the offer, I will arrange for a Deed of Release to be prepared. Should [RNT] wish to accept the offer from the Diocese, mediation with an independent mediator paid for by the Diocese can be arranged. 49 The letter contained an offer of financial compensation. 17 McLary Affidavit, Attachment RJM-3. -- 11 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 12 50 Mr McLary's practise in matters of this kind was to first seek approval from the general manager and then refer the Royal Commission redress framework proposal to the claimant. If the offer were accepted, he would arrange for a deed of release to be prepared.18 51 By his affidavit Mr McLary gave evidence:19 The purpose of my letter was only to make the financial compensation offer and that the terms associated with the acceptance of the offer would be set out in a Deed. The letter does not address any of the terms that would be set out in a Deed. The letter does not address any of the terms that would be set out in the Deed, nor did it discuss the legal costs that the Diocese would be prepared to pay to [RNT]'s solicitor in relation to the resolution of her claim for financial compensation. Section 11A(1) of the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) 52 Section 11A of the Act provides that an action for damages relating to the personal injury of a person resulting from the abuse of the person when the person was a child may be brought at any time and is not subject to a limitation period.20 53 This came into effect on 1 March 2017. 54 Section 48(5A) of the Act provides that an action may be brought on a previously settled right of action if a court sets aside the agreement effecting the settlement on the grounds that it is just and reasonable to do so.21 55 For an action to be a previously settled right of action, it must be a right of action to which s 11A applies that was settled before the commencement of the Act but after a limitation period applying to the right of action had expired. 56 As at 1 March 2017, and during all relevant times, the limitation period for RNT to bring an action for damages for personal injury had expired. 57 Section 11A might apply to RNT's claim if her previously settled right of action were settled prior to 1 March 2017 since it was an action for damages relating to the personal injury sustained as a child. 18 McLary Affidavit, pars 17, 20, 32 and 33. 19 McLary Affidavit, par 34. 20 The Act, s 11A(1). 21 The Act, s 48(5A). -- 12 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 13 58 At the time of this application the action had been previously settled. 59 RNT asserts that the Church sent a letter to her solicitors which communicated their financial redress offer of $80,000. The letter stated that if RNT accepts the offer, 'I will arrange for a deed of release to be prepared'.22 60 The offer was not expressed to be conditional upon the execution of a formal document. 61 RNT asserts that the offer was accepted by a letter from her solicitors dated 3 February 2017 informing the Church that RNT accepted the offer to settle and inviting them to provide the Deed.23 62 According to RNT the key events are these: (a) on 9 January 2017 the Church made an offer; (b) on 3 February 2017 RNT accepted the offer; and (c) on 7 February 2017 the Church sent a letter to Murphy Schmidt in terms:24 Thank you for your letter of 3 February 2017 accepting the offer of redress made to [RNT]. I have arranged for a Deed of Release to be prepared and will forward it to you as soon as possible. 63 Significantly, on 24 February 2017 Murphy Schmidt wrote to RNT reflecting their understanding that RNT's claim had been resolved and enclosed the Deed which had been prepared by the Church. Murphy Schmidt stated 'the Deed of Release formalises the agreement to settle your claim'.25 64 While I say significantly, it is not significant insofar as it records a concession by the Church. It records Murphy Schmidt's understanding that the Deed formalised the agreement. It stands as a communication made at the time that in the minds at least of Murphy Schmidt and RNT 22 Plaintiff's supplementary submissions dated 5 March 2025, par 17; McLary Affidavit, Attachment RJM-3, pages 10 and 11. 23 Plaintiff's supplementary submissions dated 5 March 2025, par 18 and Murphy Schmidt's letter of 3 February 2017. 24 Letter from the Church to Murphy Schmidt dated 7 February 2017. 25 Letter from Murphy Schmidt to RNT dated 24 February 2017. -- 13 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 14 the action had been settled. Certainly, Murphy Schmidt gave no advice about the imminent removal of the statutory limitation period to bring damages. Although, as noted previously, the conduct was consistent with a finding that a binding agreement had been reached and nothing in the Deed as ultimately signed contradicted the assertion made in the 24 February 2017 letter. 65 RNT submits four factors supporting the proposition that the parties reached a concluded and binding agreement in full and final settlement of RNT's claim against the Church. 66 First, a reasonable person viewing the correspondence between the Church and Murphy Schmidt in its entirety would form the view that the exchange of correspondence between 9 January 2017 and 3 February 2017 was intended to give rise to an immediate legally binding contract.26 67 Second, the commercial purpose or object of the settlement agreement was to bring an end to the dispute between the Church and RNT regarding her historical child sexual abuse claim against the Church. RNT asserts that as at 3 February 2017 there was nothing outstanding that meant that this commercial purpose could not be achieved at that time. 68 Third, the Deed is a short document and it does not contain an 'entire agreement clause'. 69 Fourth, the Deed did not depart in any way from the settlement that was agreed and reflected in the correspondence. 70 According to RNT this application sits within the first class of Masters v Cameron.27 Namely, by 3 February 2017 the parties had reached finality in arranging all the terms of their agreement and intended to be immediately bound in the performance of those terms, but at the same time proposed to have the terms restated in a form which would be fuller or more precise but not different in effect.28 26 Plaintiff's supplementary submissions dated 5 March 2025, par 16. 27 Masters v Cameron (1954) 91 CLR 353. 28 See Plaintiff's supplementary submissions dated 5 March 2025, par 23. -- 14 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 15 71 The Church submit that RNT has failed to establish a binding agreement,29 because the parties' correspondence up to 3 February 2017 had been silent as to essential terms of the settlement; being the nature of any releases and indemnities which the applicant might provide. Indeed, by 3 February 2017 the parties had not circulated any form of draft settlement deed, nor had they discussed the terms thereof. 72 This submission perhaps sits unhappily with the fact that the terms of the Deed as to the amount of the settlement, and the fact of a release were consistent with what was agreed by 3 February 2017. While the amount of costs was subject to further discussion, the fact that costs would be paid was agreed. No discussion as to the terms of the release appear to have taken place after the Deed was sent. And the Deed was silent as to the amount of costs to be paid, save that they would be reasonable. 73 The Church assert that after 3 February 2017, RNT negotiated for the Church to pay an additional $5,000 as part of the settlement sum by way of a contribution to her legal costs and, as such, the parties' correspondence up to 3 February was too uncertain and incomplete to give rise to a binding contract, and assert further, in any event, there was no intention to create legal relations. 74 The Church's position is that the letters of 9 January 2017 and 3 February 2017 cannot demonstrate that there was a binding agreement. The Church assert that both documents are silent as to an essential term, namely 'the basis on which the applicant would release and discharge the respondent from any liability'.30 75 The letter from the Church of 9 January 2017 includes an expression of the Church's wish to offer RNT redress of $80,000. It continues:31 If [RNT] accepts the offer, I will arrange for a Deed of Release to be prepared. Should [RNT] not wish to accept the offer from the Diocese, mediation with an independent mediator paid for by the Diocese can be arranged. 29 Respondent's submissions dated 1 April 2025, par 1.6. 30 Respondent's submissions dated 1 April 2025, par 3.4. 31 Letter from the Church to Murphy Schmidt dated 9 January 2017. -- 15 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 16 76 With respect, I am not certain that it is accurate to say that this document is silent as to an essential term, namely the basis on which RNT would release and discharge the Church from any liability. A release is contemplated and offered as part of the basis on which RNT might accept the offer. 77 In the responsive letter of 3 February 2017, RNT's solicitors accept the Church's offer of $80,000 and invites them to provide the Deed. The solicitor told the Church RNT wished to meet with the Archbishop of Brisbane to receive a personal apology. 78 The Church asserts that essential questions as to whether the Deed would include an indemnity or be limited to a release and whether the Deed would provide that the document might be pleaded in bar to any suit by RNT or whether a breach of the Deed by RNT could only sound in damages, were issues such that the letters were incapable of demonstrating a binding contract because of the lack of any definite or precise meaning. 79 The Church cite the decision of Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd32 as a demonstration of the point of principle asserted. 80 The point of principle is:33 An agreement is not a binding contract unless the parties have agreed upon such terms as are in the circumstances legally necessary to constitute a contract. Otherwise the supposed contract is bad for uncertainty. It is convenient to distinguish between two varieties of uncertainty in this wide sense and to call the first uncertainty and the second incompleteness. A contract is uncertain if some essential term is so vague that no definite meaning can be assigned to it. A contract is incomplete if the parties have deliberately (and whether expressly or by implication) left some essential term to be settled by their future agreement. (citations omitted) 81 Toyota is also an authority for a proposition that in commercial agreements there is a strong presumption in favour of an intention to create legal relations, a presumption that will only be rebutted with difficulty.34 32 Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106, 130 (Toyota). 33 Toyota (130) (Brooking J). 34 Toyota (177). -- 16 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 17 82 In this case RNT was represented by a solicitor and the Church was represented by an officer engaged specifically for the business of negotiating claims of RNT's kind. I find that there was a degree of commerciality in the formulation of the agreement of the kind reached by RNT and the Church in this case. 83 Mr McLary gave evidence of his employment with the Church, The Corporation of the Synod of the Diocese of Brisbane.35 He gave evidence of his appointment to assist in resolution of claims within the Anglican organisations in the diocese.36 He also gave evidence of delay with a volume of claims and of dealing with the firm of solicitors which represented RNT. 84 The Church submit that there are at least five reasons RNT has failed to establish that the parties intended to be legally bound. They are: • First, the parties had not settled essential terms of the proposed agreement. • Secondly, the parties were yet to discuss the terms of any deed of release. • Thirdly, the parties did not manifest any intention to enter a binding contract until RNT had been provided with the Deed. • Fourthly, the parties did not intend to contract on 3 February 2017 as evidenced by their subsequent conduct. • Fifthly, the terms of the Deed evidenced that the parties had not intended to enter into 'some' earlier binding contract as at 3 February 2017. 85 The Church refers to the High Court decision of Sinclair, Scott & Company Ltd v Naughton37 in support of its proposition that, in the context of this agreement, the parties would not have intended to be immediately bound by a contract requiring the payment of $80,000 to RNT until the terms of such a deed had been negotiated and agreed. 86 Sinclair does not support the Church's position. The decision certainly does not foreclose on the prospect that parties might be bound immediately and exclusively by the terms which they had agreed upon. 35 McLary Affidavit, par 1. 36 McLary Affidavit, pars 6 - 9. 37 Sinclair, Scott & Company Ltd v Naughton (1929) 43 CLR 310, 317 (Sinclair). -- 17 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 18 The possibility of such a case was expressly open, but on the facts of Sinclair it was not in the majority judgments' view established on the facts of that case. 87 Sinclair concerned a purported sale of an operating cattle station. 88 Unsurprisingly, the facts in Sinclair were dramatically different to the present case. The sale of a working cattle station, required considerations as to: the amount of cattle, the rate of interest on unpaid purchase money, a limitation of time within which the plaintiff might brand cattle, the removal of cattle by the vendor and the price to be paid for such removal, an adjustment for rates and taxes, the employment of the station manager and agreements for leases and plant. Additionally, consents were required with regard to leases. It required provisions as to requisitions upon title, the disposal or removal of plant and buildings, insurance and easements and detail about conditions under which the purchaser might pay off the purchase money before it became due, and an arbitration clause. 89 The High Court found that the transaction was one of some magnitude and that it related to the transfer of an undertaking as a going concern in circumstances in which the parties must have known that many subsidiary questions would require attention and arrangement before what was described as 'such a piece of business could be satisfactorily carried through'.38 90 The majority in Sinclair found that what the parties had done was to discuss and agree upon matters of financial importance and one or two obvious practical questions, and that as a matter of construction, the execution of the further contract was a condition or term of the bargain and not a mere expression of the desire of the parties as to the manner in which a transaction already agreed to will in fact go through. The High Court found:39 The case is not one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms. 38 Sinclair (316). 39 Sinclair (317). -- 18 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 19 91 This is a case of an entirely different magnitude. RNT was represented by a solicitor. The Church had its own vakil engaged specifically for claims of this type. An offer was made for a certain amount. The offer was open to be accepted prior to the arrangement of a deed of release on the express terms of Mr McLary's letter of 9 January 2017. The offer was accepted by RNT's solicitor together with the invitation to provide a deed of release. This was not a case where many subsidiary questions would require attention and arrangement before the agreement could satisfactorily be carried through. RNT's claim was one of many, sufficient for the Church to establish a specific assistant in order to manage them and enough for a firm of solicitors to be regarded as experienced and competent within their management. The transaction was not one of magnitude. It fell toward the mid-range of the maximum amount allowed. The discussion as to the quantum of costs and the provision of a release were routine. 92 The Church contend that the five reasons demonstrate that RNT has failed to establish the parties intended to be legally bound by any agreement as at 3 February 2017. With respect, I disagree. 93 The parties were represented, and as such, demonstrated a clear intention to be legally bound. The Deed came after the essential terms of the contract had been agreed, namely, the amount and the agreement to provide a release. The intention to enter into a binding contract was demonstrated by RNT's accepted contact with her solicitor, in terms described by the Church's submissions, 'get the show on the road'. The subsequent conduct was with regard to routine matters, namely, the quantum of costs and terms of the release. Of these, on the evidence, the quantum of costs appears to be the only matter that fell for discussion and these were agreed to even before the provision of an itemised account. The costs were to be paid in the agreed sum, demonstrating a formulaic nature of steps following the binding agreement. On the available evidence, the issue of costs seemed to be hardly a matter of controversy. Insofar as the fifth proposition that the parties' lacked an intention to enter into a binding contract, namely, that the recitals do not refer to any such existing agreement, I prefer RNT's submissions. The Deed did not expressly say that it represented the whole of the agreement. There is no basis for a term to be implied. Furthermore, the Deed was inept as recording what had actually occurred between the parties as the mechanics of the agreement went, recording in cl 2:40 41 40 Applicant's first affidavit, Attachment RNT-5, page 42. -- 19 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 20 In consideration of the Defendant paying the Releasor the Settlement Sum (which the Releasor acknowledges the Releasor has received) … the Releasor agrees that … 94 The Church point to those words as being indicative that RNT's release and the Deed itself were not intended to be legally binding, and the settlement would not be finalised until after payment of the settlement sum had been made by the Church. However, it stands more likely on the balance of probabilities consistent with a finding that a binding agreement had already been reached. The parties formalised it by reference to a written deed. This is so because, as a matter of fact, at the time RNT provided the release the settlement sum had not been paid. The Deed recorded that it had been. 95 The parties intended to create legal relations. The manner in which those communications were undertaken, that is the offer of 9 January 2017, the acceptance of 3 February 2017 and the confirmation of that acceptance, as recorded by the letter of 7 February 2017, and the language which was employed in those communications, allows for no other conclusion. 96 The question as to whether the parties intended to create legal relations, and the question whether what it was the parties had signed had the effect of constituting an enforceable contract, are different questions. 97 Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd,42 raises the following propositions relevant to this application: 1. The context in which the contract is arrived at may be relevant to questions of incompleteness. 2. As a matter of fact and commonsense, the more numerous and significant the areas in respect of which the parties have failed to reach agreement the slower a court will be to conclude that they had the requisite contractual intention. 3. Once the court has determined that the requisite intention is present, it is necessary to consider whether the contract is so incomplete or uncertain as to be void. It does not follow that any omission will make a contract incomplete or uncertain in 41 Affidavit of Roisin Ann McNulty sworn 31 March 2025, Attachment RAM-10, Time task report 22 February 2017. Telephone attendance - call from Arthur Chandler to Rodney McLary AC notes McLary position on costs - 'we don't really question them at all'. 42 Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 [27] - [33]. -- 20 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 21 the sense of rendering it invalid. It is only the omission of an essential term that will have that effect. It is for the parties to decide whether they wish to be bound and if so by what terms and whether they are important or unimportant. 4. The more important the term, the less likely it is that the parties will have left it for future decision. 5. There is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. 6. In determining whether essential terms are uncertain, ambiguity does not mean uncertainty. 7. So long as the language employed by the parties is not so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention, the contract cannot be held to be void or uncertain or meaningless. 8. In the search for intention no narrow or pedantic approach is warranted. 9. The fact that opinions may differ as to which of two possible meanings is to be given to the words of a clause in a contract does not mean that the clause is uncertain. It is only if the court is unable to put any different meaning on the contract that it can be said to be uncertain. 10. For a contract to be uncertain, the language must be so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention. 11. In determining whether contracts are void for uncertainty, courts should be astute to adopt a construction which will preserve the validity of the contract. 98 In this application the question arises as to what the essential and critical terms are. 99 They were that the Church wished to offer RNT redress of $80,000. The redress was in respect of her claim which was statute barred. If RNT accepted the offer, the Church would arrange for a deed of release to be prepared. -- 21 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 22 100 RNT was not obliged to accept the offer and had she not, mediation could have been arranged. 101 RNT accepted the offer of $80,000 and through her solicitors invited a deed of release. 102 The Church submit that on examination of the two letters there could be no binding agreement. It asserts that both documents are silent as to an essential term. That is the basis on which RNT would release and discharge the Church from any liability. 103 The subsequent communication as to the release and as to the issue of costs demonstrate their intention to be bound. The correspondence does not demonstrate an intention that they were not to be bound until all of the essential preliminaries had been agreed to or until a formal contract or deed had been drawn up embodying all of the matters incidental to the transaction. 104 In my view, a reasonable person in the position of the parties would have taken them to have intended to contract by way of the exchange of letters of 9 January and 3 February 2017. Having regard to the terms of the letters and the fact that they were drafted by a solicitor on the part of RNT and an employee on the part of the Church who had been appointed to assist the general manager of the diocese in the resolution of requests for financial redress for child sexual abuse within that diocese. 105 The agreement was reached while the Church and RNT's former solicitors were engaged in negotiations of other claims unrelated to RNT. Demonstrating that these negotiations were part of a larger system engaged in by RNT's solicitor and the Church and has such demonstrating the commerciality of this and other negotiations. 106 I find there was an intention to effect legal relations, and that they intended to be bound immediately. The Deed appeared to be an artefact of the agreement. The costs fell to be negotiated after the agreement, and the Church offered apology did not form any part of the agreement. 107 I find the parties intended to make a concluded bargain, and this was not on hold, forestalled or suspended, somewhere unless and until they executed a formal instrument. Rather, I find they made and concluded an agreement and later proposed to execute a deed. -- 22 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 23 108 Cases where parties' intend to effect legal relations and be bound immediately, or where the parties intend to create legal relations but do not intend to make a concluded bargain prior to the execution of a formal instrument are sometimes referred to as a Masters v Cameron category. 109 In Masters v Cameron the High Court identified three categories of such cases, namely: 1. Where the parties reach finality in arranging all the terms of their bargain and intend immediately to be bound but propose to have the terms restated in a form which would be fuller or more precise but not different in effect. 2. Where the parties have agreed upon all the terms of their bargain and intend no departure from or addition to their agreed terms but have made performance of one or more of the terms conditional upon the execution of a formal contract. 3. Where they do not intend to make a concluded bargain at all unless or until they execute a formal contract. 110 Matters of importance on which the parties have not reached consensus in their informal agreement render it less likely that they intended immediately to be bound before the execution of a formal document. Terms that have not been fully or well stated and which are material to whether a contract has been made are of consequence. The more important the term, the less likely it is that the parties will have left it over for future decision. However, there is no legal obstacle which prevents the parties agreeing to be bound immediately while deferring important matters. 111 In the assessment as to whether or not the parties intended to be immediately bound before the execution of a more formal document, regard may be had to the parties' subsequent communications and other conduct to assess whether it was in their contemplation that they were not to be bound until all of the essential preliminaries had been agreed to or until the formal contract had been drawn up embodying all the matters incidental to the transaction.43 43 Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2022] NSWSC 144 [64] - [68]. -- 23 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 24 112 In this case, the Deed and the amount of costs was not controversial. On a reading of the documents which demonstrated the binding agreement, the letters of 9 January and 3 February 2017, costs and the fact a deed of release would be executed were consequential to the binding agreement but not determinative of it. 113 In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd,44 Allsop J said: [A] number of authorities discuss the need not to constrict one's thinking in the formation of contract to mechanical notions of offer and acceptance. Contracts often, and perhaps generally do, arise in that way. They can also arise when business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting 'i's and crossing 't's or where they think they have done so. … Sometimes this failure occurs because, having discussed the commercial essentials and having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances, even in the absence of clear offer and acceptance, and even without being able … to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, a body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: 'and we hereby agree to be bound' in this or that respect. The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract. … (citations omitted) 114 In Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3],45 the Court of Appeal referred to Branir and observed that the law of contract is based on honest commercial commonsense and endorsed the statement of principle that the theme that runs through the 44 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 [369] (Branir). 45 Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3] [2012] WASCA 157 (Westpac). -- 24 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 25 law of contract is that the reasonable expectations of honest people must be protected. Such is the objective which has been the principal moulding force of the law of contract.46 115 The court noted that millions of contracts are made every day where the parties do not turn their minds to the terms upon which they are contracting.47 116 It is important to consider the commercial purpose of the contract.48 117 In this case the commercial purpose of the contract was, through the officers of a manager appointed by the Church and a solicitor engaged by RNT, to resolve one of many claims which had been made against the Church for historical child sexual abuse. 118 That there is no mention of the substance or form that a deed would take, and the fact that there is no evidence that the parties had discussed the form prior to 3 February 2017, does not mean the agreement is incomplete in the sense that the parties had deliberately left an essential term to be settled by their future agreement. 119 The fact of a deed being executed was not a term of doubtful significance nor was inclusion of a release. 120 The transaction, although significant to RNT, was not a large transaction, or a transaction of significant magnitude for the Church and certainly did not represent the only claim the Church was negotiating at the time. 121 There is nothing that counts against the parties entering into a contract to bind themselves. The evidence demonstrates they did. 122 The parties had agreed to the most important terms, namely, the compensation, the amount and that there would be a release. 123 It is with respect artificial to contemplate the many terms of release that might have been included as proffered by par 3.6 of the Church's submissions. Perhaps especially so in circumstances where the solicitor acting for RNT, said to be experienced in managing claims of this kind, did not on the available evidence turn their mind to the 46 Westpac [3244]. 47 See Westpac [3265]. 48 See Westpac [3245]. -- 25 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 26 limitation period and the foreshadowed removal of that. And further where the Deed, as signed, included terms which suggested the document was something of a template, or at least not responsive to or reflective of the circumstances which confronted the parties. For example, the Deed obliged RNT to file a notice of discontinuance of the claim, defined as her impact statement, as soon as possible. Notwithstanding no proceedings had issued. On the available evidence the only discussion following the binding agreement was as to the amount of costs the Church would pay. These were not contentious. 124 The correspondence was between an experienced firm of solicitors, insofar as management of these claims, and an officer appointed specifically to manage, from the Church's perspective, its operations. 125 The agreements were not a bespoke circumstance but rather one of many which were being managed between various individuals and the professional parties that were called upon to represent. I do not accept the Church's submission that, from its perspective, the uncertainty and incompleteness concerning the nature of any release rendered the binding agreement 'inutile'49 as engaging as that word is. 126 Had a release not been provided, payment of the agreed amount would unlikely have been made. However, that does not determine whether a binding agreement had been made. At all times prior to 1 March 2017 the fact of a release was agreed as a term of the agreement. Had RNT commenced proceedings, potentially the Church might have tendered payment of the agreed amount and relied on the correspondence of 9 January 2017 and 3 February 2017. Perhaps the Church might have sought specific performance against RNT. These matters do not have to be decided to determine whether there was a binding agreement by 3 February 2017. 127 The Church refer to a file note prepared by RNT's solicitor on 16 February 2017 as part of its submission that there was no binding agreement between the parties by 3 February 2017. 128 The note of the conversation between the solicitor and RNT includes the solicitor's explanation to RNT of what a deed is, namely 'it formalises the settlement' along with the representation that they were checking the Deed to ensure it was in her best interests and that they were currently discussing reasonable legal costs with them. 49 Respondent's submissions dated 1 April 2025, par 3.9. -- 26 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 27 129 On the available evidence it appears that the discussions between RNT's solicitors and the Church were with regard to the amount of costs the Church were prepared to contribute by way of payment of RNT's reasonable legal costs.50 130 The respondent submitted that RNT was keen to 'get the show on the road'.51 131 The Church speaks of the ongoing negotiations, but these appear to be limited to the solicitor's costs and ancillary to, that is not essential to the binding agreement reached. 132 Insofar as the terms of the release go, apart from an explanation contained in the solicitor's letter of 24 February 2017,52 there does not appear to be any evidence that the release was the subject of any detailed discussion, amendment or negotiation. 133 The Church submit that any binding agreement was replaced by the Deed. 134 With respect this sits inconsistently with the record. If this were the case, the Deed would have said so. It did not. I do not accept that the Deed contained further and different essential terms to those contemplated between the parties in the correspondence of 9 January 2017 and 3 February 2017. 135 The Church submits that the statutory construction of s 48 of the Act confers jurisdiction on this court to set aside 'the agreement effecting the settlement' where that agreement was executed prior to 1 March 2017. 136 The Church also put an alternative position, namely that if this court were to find that there was a binding agreement by 3 February 2017 then that agreement was terminated and replaced by settlement terms comprised in the Deed of 2 March 2017.53 137 The Church also assert that the proper interpretation of s 48(5A) and s 48(6) of the Act limits the court's jurisdiction to a capacity to set aside the 'agreement effecting the settlement' where that agreement was executed prior to 1 March 2017 and as such, any 'binding agreement' of 50 Affidavit of Roisin Ann McNulty sworn 31 March 2025, par 12. 51 As cited in Respondent's submissions dated 1 April 2025, par 2.22. 52 Applicant's first affidavit, Attachment RNT-4. 53 Respondent's submissions dated 1 April 2025, par 1.9. -- 27 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 28 3 February 2017 would not enliven the court's jurisdiction as the Deed was executed on 2 March 2017. Implicit in the argument is the assertion that in this case the agreement effecting the settlement was the Deed and not, if established, the binding agreement of 3 February 2017. 138 RNT submits: 1. That it is the settlement of the action and not the execution of the settlement agreement that gives effect to the settlement that must occur before 1 March 2017.54 2. That s 48(5A) distinguishes between a 'previously settled right of action' and 'the agreement effecting the settlement'. 139 RNT submits that there is a distinction between the two concepts, and this is demonstrated in s 48(6) of the Act which defines an 'associated agreement' as including an agreement effecting a settlement and a previously settled right of action as that which means:55 … a right of action for an action to which section 11A applies that was settled before the commencement but after a limitation period applying to the right of action had expired. 140 RNT submits that the definition of a 'previously settled right of action' does not incorporate the definition of 'associated agreement' or 'the agreement effecting the settlement', as they are different concepts.56 141 I agree that a previously settled right of action and the agreement effecting the settlement are potentially different things. 142 Section 48(5A) speaks of 'effecting the settlement'. Section 48(6) speaks of 'a right of action for an action to which section 11A applies that was settled before the commencement'. 143 The provisions in s 48 do not speak of an agreement being executed. They do not require an agreement to be in writing. What is required for s 48(5A) to apply is there to be an agreement effecting the settlement and, insofar as s 48(6) goes, a previously settled right of action, settled before the commencement of the Act but after a limitation period applying to the right of action had expired. 54 Plaintiff's supplementary submissions dated 5 March 2025, par 6. 55 The Act, s 48(6). 56 Plaintiff's supplementary submissions dated 5 March 2025, pars 7 - 9. -- 28 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 29 144 Agreements can, without being written, effect settlements. Agreements can be inferred or implied. On some occasions agreements might be recorded in writing without effecting a settlement if the written record simply is a note of something which has already happened. 145 I do not accept that either s 48(5A) or s 48(6) limit the jurisdiction of a court to circumstances where there is a written agreement and the written agreement was executed prior to 1 March 2017. 146 I accept the submissions made by RNT that it is the binding agreement which created settlement and not the execution of the Deed that must have occurred prior to 1 March 2017. 147 Agreements might be reached and might be binding. There is, subject to statutory exceptions, no requirement for agreements to be in or reduced to writing. 148 The Act does not require the agreement to be in writing. What it requires is that there be a previously settled right of action, and that the previously settled right of action results in an agreement. This was so in this case by the binding agreement of 3 February 2017. 149 A previously settled right of action is expressly defined in s 48(6) to be 'a right of action for an action to which section 11A applies that was settled before the commencement but after a limitation period applying to the right of action had expired'. This is so in this case. The right of action was settled on 3 February 2017. The court has the power to set aside the Deed under s 48 of the Act. 150 In its written submissions the Church contends that the word 'settled' should be read with and informed by the words 'agreement effecting the settlement'. 151 RNT appears to accept that the Deed was the agreement effecting the settlement. 152 The agreement of 3 February was the agreement that effected the settlement of her right of action, and the Deed reflected the settlement. 153 The Church submit that the word 'settled' should be interpreted strictly as referring to the settlement which arises from the agreement effecting the settlement and a strict interpretation is warranted by what is said to be the extraordinary nature of the power to set aside a binding -- 29 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 30 agreement, as confirmed by s 48(5A). There is no warrant for this proposition and the decision in Kezchek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs57 does not support the Church's contention. 154 This is an unusual case. On any view the correspondence of 3 February 2017 and the execution of the Deed on 2 March 2017 takes place on a hinge between the period in which RNT's limitation period for a right of action had expired and the commencement of the Act which included s 11A and by which an action for damages relating to the personal injury of a person resulting from the abuse of that person when the person was a child might be brought at any time and was not subject to a limitation period. 155 The removal of the limitation period might be thought to be an extraordinary thing and the settlement of 3 February 2017 and execution of the Deed of 2 March 2017 taking place at the times at which it did might also be thought to be extraordinary. 156 I do not accept that the expressed legislative intention was limited to the court having discretion to set aside a settlement where the agreement effecting the settlement was entered into before the commencement, such as to require a finding that the Deed effected the settlement and as such the previously settled right of action was not settled before the commencement. Further this would, contrary to the express words of the Act, import a requirement that the settlement be recorded in writing. This is not the case. 157 In my view the previously settled right of action was settled on 3 February 2017. The right of action was for an action to which s 11A applies. It is a right of action for damages relating to the personal injury of a person resulting from the abuse of the person when the person was a child. It was settled after the limitation period applying to the right of action had expired. I do not accept that the word 'settled' should be interpreted strictly as referring to the settlement which arises from the agreement effecting the settlement, namely, the Deed in this case signed on 2 March 2017. 57 Kezchek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 856. -- 30 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 31 Would it be just and reasonable to set aside the Deed? 158 The Church submit58 that s 48(5A) and s 48(6): were introduced to give the Court power to set aside historical settlement agreements in circumstances where entry into those deeds had likely been unfairly influenced by limitation periods which applied at the time, but which had since been removed. 159 RNT has demonstrated that the binding agreement was reached on 3 February 2017. Whether the court should set aside the Deed, is another matter. 160 The principles relating to the construction and application of s 48(5A) of the Act as set out by Davis J in TRG v The Board of Trustees of the Brisbane Grammar School59 summarised those principles, insofar as they relate to s 48(5A), as follows: 1. The onus is on the applicant for orders under s 48(5A) to establish that it is just and reasonable to disturb the status quo and set aside the settlement agreement. 2. Whether it is just and reasonable to set aside a settlement agreement must be addressed at the time of the application. That is, taking into account all that has happened up to the hearing, is it just and reasonable to set aside the settlement. 3. The power to set aside the settlement agreement is discretionary. 161 The issue of whether it is just and reasonable to set aside the agreement is discretionary and calls for an assessment of circumstances which might include whether the entry into the agreement which effected the settlement had likely been unfairly influenced by limitation periods. 162 The unfair influence of a limitation period would, if established, be important but there may be other matters which would also be important. For example, agreeing to settle within a range for below what might be open if an action for damages for personal injury were successful, or if an agreement were settled in circumstances where a party who accepted the offer received no advice that a statutory limitation period for bringing damages was to be removed within days. Even accepting for the fact that this was through no fault on the part of the Church. 58 Respondent's submissions dated 1 April 2025, par 1.11. 59 TRG v The Board of Trustees of the Brisbane Grammar School [2019] QSC 157 [131] - [142]. -- 31 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 32 163 RNT was represented during the time the negotiations for which the Deed took place in circumstances where: (a) the Queensland Parliament had already enacted the new legislative provisions to remove limitation periods for historical abuse; (b) RNT was represented by a law firm who were experienced in managing claims for historical abuse; and (c) during the negotiations the Church did not ever rely or intimate that it might rely on any limitation defence. 164 These matters factor into whether or not it is just and reasonable for a court to set aside the agreement. 165 The fact that experienced solicitors managed the claim for historical abuse, as a general proposition, might not restrain a court from forming a view that it was just and reasonable to set aside an agreement effecting the settlement in circumstances where, on the face of it, the potential inadequacy of the agreement's compensation, combined with the lack of any evidence to demonstrate RNT's solicitors turned their minds to what a likely quantum of damages might be if an action were successful in circumstances where there was no limitation period applying to the right of action and where the limitation period was to be removed within days of the proposed settlement. 166 I do not accept that the prejudice that would be occasioned to the Church represented by being without the protection of an arm's length settlement agreement in circumstances where legislation had already been passed removing any limitation period for historical child sexual abuse, is a prejudice or an impermissible prejudice that militates against the use of the discretion. 167 While surprising, the absence of any suggestion that RNT's solicitors were aware of or considered the imminent removal of the limitation period, is not a matter that factors into the assessment of prejudice against the Church. Nor is the fact that RNT might have a claim against those solicitors relevant to the assessment. 168 That the Church were aware of the imminent removal of the limitation period is not relevant. On their case, the imminent removal of the limitation period was not a factor that influenced in any way the negotiation and resolution. The fact that the Church paid an amount which will not or might not be reimbursed to the Church is not relevant or determinative. -- 32 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 33 169 I do not accept the fact that RNT's decision to enter into the Deed was not influenced by the existence of a historical limitation period is either decisive or material. It seems that the limitation period was of no influence to either party. 170 The Church cite Fraser JA's reasons in TRG v Board of Trustees of the Brisbane Grammar School60 in support of the submission of the primacy of the influence of the limitation period on the decision to settle the claim. 171 The decision in TRG v Board of Trustees of the Brisbane Grammar School61 is not an authority for a proposition that the existence of a historical limitation period is a decisive fact in the exercise of the discretion. 172 The discretion to set aside a settlement arises where it is 'just and reasonable' to do so. In TRG v Board of Trustees of the Brisbane Grammar School62 the Court of Appeal found that there was insufficient justification for taking the very large step of imposing an unexpressed condition namely that the settlement was influenced adversely to the applicant by the expiry of the limitation period. 173 The court found:63 (a) the statutory text considered in its context (including the extrinsic material to which the appellant referred) did not justify the claimed implication that, regardless of the kind or degree of influence of expiry of the limitation period upon the settlement, the fact that there was such an influence necessarily must be given greater weight than any factor favouring refusal of the claimed order; (b) the use of the expression 'just and reasonable' to identify the only ground for such an order, the fact that the power is conferred upon courts, and the absence of any express identification of the material factors or the relative weight or significance to be attributed to any of them, compel the conclusion that the legislative purpose encompasses account being taken of the interests of both parties to the settlement in deciding whether it is just and reasonable to set aside the 60 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440 [29]. 61 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440. 62 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440. 63 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440 [28]. -- 33 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 34 settlement agreement, the relative significance or weight to be given to the material factors in that exercise depending upon a judicial assessment of the particular circumstances of each case. 174 While there are many reasons why a claimant might settle a claim, in this case there was direct evidence that while RNT did not really understand what the term limitation period meant, she did understand that she was not able to commence proceedings against the Church because of the limitation period.64 So while the limitation period does not appear to have been of influence to the decision to settle, it appears that it was an accepted fact. A fact that was only temporarily accurate. 175 The facts of this case are not more unfavourable to RNT than those in TRG v Board of Trustees of the Brisbane Grammar School.65 There the responding school, following the issue of proceedings, agreed to a mediation. Each party was represented by senior and junior counsel instructed by solicitors where a framework for mediation had been agreed and undertook a formal mediation in relation to claims by a number of claimants before a mediator who was a senior counsel who specialised in mediations. 176 This is not a matter of distinguishing TRG v Board of Trustees of the Brisbane Grammar School.66 The background that proceeded the claims reaching the court in that case and in this case were factually very different. TRG v Board of Trustees of the Brisbane Grammar School67 is not an authority for the proposition that an applicant must establish that the removal of the limitation period was a significant factor in influencing the Church's decision to resolve RNT's claim. It is one factor, and it might be an important factor. 177 I am required to take into account the interests of both parties to the Deed in deciding whether it is just and reasonable to set aside the settlement agreement. 178 The Church submit that RNT has not demonstrated that she has 'good prospects of attributing to the church for vicarious liability' and insofar as the use of the word good prospects go are engaging with the expressed submission made by RNT.68 64 Applicant's third affidavit, par 11. 65 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440. 66 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440. 67 TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440. 68 Respondent's submissions dated 1 April 2025, par 4.10 and RNT submission, par 37. -- 34 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 35 179 At this time there is a lack of material to assess the likelihood of a finding that either the nun or housemother were employed by the Church. If they were, it is likely that employment provided the occasion for the abuse, but it is too early to say. 180 The Church point to the decision in Bird v DP (a pseudonym)69 and submit, with respect accurately, that RNT would only have a claim for vicarious liability if the relevant nun and housemothers were employees of the respondent. 181 In Bird the High Court made it clear that the court should not expand the boundaries of vicarious liability beyond a relationship of employment to one that is 'akin to employment'.70 182 The law requires that a relationship of employment is established before an entity, however constituted, can be vicariously liable for the wrongs of its employees.71 183 It remains the law, however, that the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. And that it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Notwithstanding the converse fact that employment which affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract various liability.72 184 In this case RNT asserts, in support of her submission as to why it is just and reasonable to set aside the Deed, that the persons responsible for the assaults were a nun and a housemother. 185 The evidence likely to come from RNT is that the abuse happened within the Tufnell Children's Home. Further, that the housemother was in charge of and managed every aspect of the home, provided care for the children and that the nuns undertook other duties in relation to the care of the children in the home.73 If the housemother or the nuns employment with the Church is established, then certainly there is a basis for asserting that RNT will have good prospects of attributing to the Church's vicarious liability for the offences committed against her. It can be, as I do, concluded that it is at least reasonably arguable that 69 Bird v DP (a pseudonym) [2024] HCA 41 (Bird). 70 Bird [47]. 71 Bird [69]. 72 Prince Alfred College Incorporated v ADC [2016] HCA 37 [8]. 73 RNT's submissions dated 16 July 2024, par 36. -- 35 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 36 RNT has a claim against the Church. This is especially so where one of the wrongdoers is described as a nun. On the face of it, it appears likely that the nun was employed by the Church. 186 In DZY (a pseudonym) v Trustees of the Christian Brothers74 the High Court considered Fraser JA's description of the court's task in considering whether to set aside a judgment as useful.75 187 The court has been conferred a power. The court's obligation is to take into account the interests of both parties to the settlement in deciding whether it is just and reasonable to set aside the settlement agreement and the relevant significance or weight to be given to the material factors in the exercise depend upon a judicial assessment of the particular circumstances of this case. 188 While there is work to be done insofar as RNT's claim goes, there are certainly arguable prospects of attributing vicarious liability to the Church. 189 Similarly, insofar as the Church being primarily responsible for the loss, the case is clearly arguable in circumstances where RNT will give evidence: (a) she was in care; (b) at Tufnell Children's Home; (c) she was assaulted by a nun and a housemother; and (d) the housemother and nun were in charge of and responsible for management of the home and supervision and care of the children within it. 190 The Church's submission that RNT has not established that the settlement sum is not a fair settlement having regard to the cap of $150,000 pursuant to the National Redress Scheme,76 is not persuasive when regard is had to be asserted potential quantum of the claim which, according to RNT,77 could be up to $3 million. 74 DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 (DZY). 75 See DZY [26]. 76 Respondent's submissions dated 1 April 2025, par 4.12. 77 See RNT's submissions dated 16 July 2024, par 38. -- 36 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 37 191 I accept RNT's submissions that if successful there is a likelihood that the quantum could significantly exceed the settlement sum paid.78 Further, there is an arguable case advanced insofar as the heads of damage which could apply in this case if leave were granted, namely general damages, past and future loss of earning capacity and costs of future treatment. 192 This is not a case such as arose in Prince Alfred College Incorporated v ADC where a claimant had made a deliberate decision not to pursue legal proceedings. The evidence in this case is that at the time RNT settled her claim against the Church she was unaware of any capacity to commence proceedings against the Church. 193 The exercise of a discretionary power must be exercised with regard to the particular facts and circumstances of the case. There is no rigid or inflexible guideline or signposting as to when a discretion might be exercised. Each case is different. 194 I do not accept that the decision by RNT to enter into the Deed on the available evidence not being influenced by a limitation period militates strongly against the exercise of any discretion in her favour. The fact of the matter is the limitation period was extended within days of the agreement of 3 February 2017 and the Deed of 2 March 2017. The amount of compensation paid to her on any view was considerably less than what she might have achieved had she been successful if an action had been brought against the Church. 195 Insofar as why the Church should bear the burden of any failure from the solicitor to provide proper advice,79 now, if RNT's solicitor failed to provide proper advice, the question arises as to why the Church should bear the burden for that failure. Insofar as the discretionary exercise goes, I cannot make a finding that the solicitor failed to provide proper advice. However, the Church concede that there was a basis for making a compensation payment and as such, insofar as exercising the discretion goes, RNT ought to have the ability to seek compensation from, on her position, the principal wrongdoer. 196 The High Court in DZY, when considering the Victorian provision, concluded there was nothing in the text which limits the exercise of the courts power to circumstances where the claimants decision to enter into the settlement agreement had been materially 78 RNT's submissions dated 16 July 2024, par 40. 79 See Respondent's submissions dated 1 April 2025, par 4.15. -- 37 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 38 impacted by the limitation defence and noted that the text does not prescribe the matters to which the court should have regard in determining whether to set aside a settlement agreement.80 Notwithstanding this is different legislation, the observations apply with equal force to the provisions of s 48(5A) of the Act. 197 The High Court decided that the text requires that in order for the court to set aside a settlement agreement, the court be satisfied that it is just and reasonable to do so. The court said that the words 'just and reasonable' are words of wide input. And that there was no basis in the purpose or context of s 27QE of the Limitation of Actions Act 1958 (Vic) to read the words 'just and reasonable' as subject to some limitation not found in the text or of the provision.81 The same observations apply in this case. 198 Certainly, in this case, RNT was legally represented, and she did not give evidence of being pressured to sign the Deed or being moved to do so by reason of the limitation period. However, that is not determinative. In this case, there was no advice given to RNT about a capacity to commence proceedings and rather the available evidence suggests otherwise. The advice from her solicitors was we do not see any basis on which you may be successful in having your limitation period extended.82 199 RNT received this advice in December 2015. Sometime before she settled her claim against the Church. It does not appear that her former solicitors revised their advice prior to the agreement to settle in February 2017. 200 The available evidence includes the third RNT affidavit and the note of her telephone call to her solicitors in which she was advised that 'churches are willing to negotiate on an informal basis and ignore the fact that time has expired'.83 201 On the available evidence there was no suggestion that RNT had the capacity to commence proceedings and, while the limitation period cannot be said to be expressly operative in her decision to accept the offer, the fact remains as submitted by counsel for RNT that 'those communications are relevant … because [RNT] had no choice, no other option but to commence the process of financial redress'.84 80 See DZY [24]. 81 See DZY [35]. 82 Letter from Murphy Schmidt dated 4 December 2015. 83 Applicant's third affidavit, Attachment RNT-4, page 15. 84 ts 32. -- 38 of 39 -- [2026] WADC 53 MACLEAN DCJ [2026] WADC 53 (AC) Page 39 202 So, while there are differences between RNT's claim and similarities in her position with the applicant in DZY, the issue of influence or otherwise arising from the fact of an expired limitation period in a decision to accept a settlement offer was of differing and variable effect and is one matter to be considered in this application in the assessment of whether it is just and reasonable to set aside the Deed. The issue of whether a limitation period influences an applicant's decision to enter into a deed of settlement might be an issue that is relevant. Its relevance however is that, on the basis of the available evidence, the prospect of commencing proceedings simply did not arise as an available option. The Church submit that there was no evidence that could demonstrate that there was any undue influence from the church to RNT. That is the case. However, that does not forestall the application or preclude a finding that it would be just and reasonable to set aside the application. RNT was told by her solicitor that the Church would be prepared to negotiate on an informal basis and to ignore the fact that time had expired. However, in that regard it would be remiss not to consider that the ambit of the negotiations were conducted within narrow range between no compensation to a maximum of $150,000 compensation. A range that is dwarfed by the potential ambit of RNT's claim should it be established in court. 203 This is so notwithstanding the submissions about the likely objection the Church would make to the assumptions contained in the Vincent report. Notwithstanding these submissions there is a basis, yet to be tested, for a substantial claim to be made. 204 I find the parties reached a binding agreement on 3 February 2017, and that it would be just and reasonable to set aside the agreement. For those reasons, RNT should have orders as sought in orders 1, 2, 3 and 4 of the originating summons. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. BG Associate 23 JUNE 2026 -- 39 of 39 --