A step too far? Resiling from arguments following appellate decisions and undermining their finality

The Supreme Court of Victoria decided that the plaintiff’s attempt to contest the construction of deeds, after allowing an appeal to the Supreme Court of Victoria Court of Appeal and the High Court of Australia, on alternative grounds for appeal, has amounted to an abuse of process.

In issue

• A recent Supreme Court of Victoria decision in DZY v Trustees of Christian Brothers Pty Ltd relates to a string of proceedings initially brought by DZY (plaintiff) to set aside prior deeds of settlement entered into in 2012 and 2015 releasing the Christian Brothers Pty Ltd (defendant) from the plaintiff’s claims relating to alleged instances of abuse that occurred in the 1960’s. The deeds also included a clause that the plaintiff made no claim for economic loss.

The issues the subject of this proceeding included:

1. whether advancing proceedings on the basis of an alternative construction amounts to an abuse of process
2. the protection and finality of decisions from appellate jurisdictions, and
3. whether a party 'resiles' from earlier positions once courts have relied on them.

The background

Between 1964 to approximately 1968, the plaintiff was a student at St Alpius Primary School in East Ballarat (St Alpius), operated by the defendant. During his time at St Alpius, it was alleged that the plaintiff was sexually assaulted or otherwise subjected to maltreatment by Brother Robert Best and Brother Fitzgerald (the claims).

In December 2012, the plaintiff entered into a settlement deed (2012 deed), releasing the defendant from liability for the claims. The 2012 deed was entered into prior to the limitation defence in the Limitation of Actions Act 1958 (Vic) (Act) being abolished. Following the legislative abolishment of the limitations defence, but still prior to the Ellis defence¹ being removed, a subsequent deed was entered into in 2015 (2015 deed). Both deeds released the defendant from any further claims pertaining to economic loss with regard to the injuries pleaded as a result of the claims.

The primary proceeding

Following the Ellis defence being abolished, the plaintiff commenced proceedings in the Supreme Court of Victoria Trial Division, against the defendant in 2021, claiming general damages and economic loss. He filed a summons in 2022 under ss 27QD and 27QE of the Act, seeking to set aside both deeds in their entirety. The defendant opposed the application insofar as it related to economic loss, due to the wording of the deeds explicitly stating that the plaintiff did not allege economic loss. However, the Associate Justice set aside both deeds in their entirety.

The appeal

The defendant appealed the judgment to the Supreme Court of Victoria Court of Appeal (Court of Appeal) on grounds that the Associate Justice had erroneously set aside the deeds in their entirety, without giving proper consideration to both heads of damages. The defendant had not opposed the plaintiff’s claim for general damages, yet argued that the plaintiff had expressly agreed in both deeds that he made no claim for economic loss. The appeal was allowed and the Appellate Judges set aside the deeds in part, barring the plaintiff from bringing a claim for economic loss, and allowing him to pursue a claim for general damages. In making its decision, the Court of Appeal found that the dominant motivation to release the defendant from liability at the time of the 2012 and 2015 deeds, and not pursue a claim for economic loss, was due to the plaintiff’s apprehension regarding Centrelink payments, rather than from historical legal barriers such as statutory limitations, or the Ellis defence. On this point, the Appellate Judges found that the deeds being set aside in their entirety was an error made by the Associate Justice on the basis that it was not just and reasonable to do so insofar as it related to economic loss.

The plaintiff’s appeal to the High Court

The plaintiff appealed the decision of the Court of Appeal to the High Court in May 2024. While the High Court granted leave to appeal, it ultimately decided to dismiss the plaintiff’s appeal.

The present decision

Following the High Court’s dismissal, the plaintiff commenced a proceeding in the Supreme Court of Victoria and sought to advance an alternative argument as to the true construction of the settlement deeds, in an attempt to avoid their effect of barring the plaintiff from pursuing damages in relation to economic loss. The plaintiff’s main alternative argument was that the 2012 and 2015 deeds did not release the defendant from a claim for economic loss, as, on true construction of the deeds, economic loss was not part of the subject matter of the claims. They stated that the deeds were, at the time, describing what was not alleged by the plaintiff.

In April 2026, the Supreme Court of Victoria rejected the plaintiff’s approach and held that the plaintiff could not, after the matter had been determined at an appellate level, attempt to advance an alternative construction of the deeds that was inconsistent with the way that the case had previously been conducted.

The Court characterised this as impermissible, effectively amounting to an attempt to alter the basis of the case after the earlier arguments had failed. The Court held that it would not be just to permit the plaintiff to depart from the combination of acts and omissions that had shaped the litigation to date, and that the 'administration of justice would be brought into disrepute' if the plaintiff were to be permitted to resile from those acts and omissions.²

Implications for you

The Supreme Court of Victoria’s most recent decision highlights the strict limits on a party’s ability to revisit or reframe its case, particularly following appellate decisions, and that even where legislative developments have altered the broader landscape, parties remain bound by the way in which their case was previously conducted, particularly where a party had pursued alternative construction points throughout the course of proceedings.

The Supreme Court made it clear that attempts to advance new arguments, such as a revised construction of a settlement deed, after the conclusion of appellate proceedings, will be treated as an abuse of process where those arguments depart from the assumptions and reasoning behind which the earlier litigation proceeded.

For defendants, this decision provides a powerful precedent on how to resist attempts to reopen settled claims by pointing to a plaintiff’s earlier forensic choices and the finality of the appellate process.

For plaintiffs, it highlights the importance of advancing all available arguments at the appropriate stage, as the opportunity to do so, especially if known earlier, will not be revisited once the matter has been determined.

More broadly, this case reinforces the Court’s emphasis on finality, efficiency and the integrity of the judicial process, particularly in the context of historical abuse claims and prior settlement arrangements that were not found to have been entered into based on the legal barriers, such as statutory limitations or the Ellis defence.

¹ Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis and Another [2007] NSWCA 117 was abolished by the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), which now allows Plaintiffs to bring a claim against unincorporated non-government organisations.

² DZY v Trustees of the Christian Brothers (No 2) [2026] VSC 144 [125].