The Court held it was just and reasonable to set aside in full a 2016 settlement deed under s 27QE of the Limitation of Actions Act 1958 (Vic), where the Ellis defence materially influenced the plaintiff's decision to pursue an out-of-court resolution, even though the defence was never explicitly raised by name by either party. The Court found that the death of the alleged perpetrator after proceedings commenced constituted only routine and unexceptional impoverishment of evidence in the 'new world' recognised by GLJ, particularly where the deceased's police interview and draft affidavit remained available under the hearsay exception for unavailable witnesses. The Court also rejected a partial set-aside confined to general damages, holding there was no basis to infer abandonment of a loss of earnings claim where both parties had approached the settlement as a restorative justice process expressly not intended to replicate common law damages.
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