Abuse firm to pay former client $260k for negligence

Justice Jack Forrest’s judgment was critical of Waller Legal’s principal solicitor, Dr Vivian Waller, whose defensiveness to any attack on her firm’s reputation and professional standards was unwavering despite the “overwhelming evidence to the contrary”.

According to media reports, Waller Legal will face more negligence cases brought by former clients upset over the firm’s advice.

Waller Legal was retained by the survivor, who cannot be named for legal reasons, in late 2015 to assist with a claim for damages in relation to the abuse he suffered at the hands of two brothers of the Order of the Missionaries of the Sacred Heart (MSC).

The survivor agreed to settle his claim for $140,000, inclusive of legal costs, and renounced all legal rights against MSC and several brothers. It was also acknowledged that no claim for economic loss was made, and the settlement would not include this component.

Other than the economic loss claim, the settlement was set aside in November 2022, and the survivor settled his claim for general and special damages for $400,000, in addition to the $140,000.

With assistance from Rightside Legal, the survivor filed a claim in the Supreme Court against Waller Legal for negligent advice and misleading conduct in the handling of his economic loss claim.

The court heard he agreed to the 2017 settlement after Waller Legal advised him against launching legal proceedings because of the Ellis defence, which spelt out that there were “significant, if not insurmountable, obstacles” in identifying an appropriate defendant.

Although it was not dismantled until 2018, the Catholic Church indicated it would not use the Ellis defence as a legal tactic in 2015.

In addition to the Ellis defence, Waller Legal indicated there were a number of obstacles that made the survivor’s claim “worthless”, including that suing an individual perpetrator was “fraught with difficulty” and concerns on “pleading out a tenable cause of action”.

Justice Forrest considered these excuses to be “furphys”, particularly because not one of the supposedly insurmountable obstacles had been identified by MSC in the negotiations to settle in 2017.

“The only rational conclusion is that the sole defence advanced by MSC … related to the quantum of his claim and not the liability of MSC for the consequences of the alleged abuse,” he said.

“Dr Waller’s opinion as to the obstacles facing a common law claim may have been open to a solicitor practising in this area in 2014; however, by late 2016 and 2017, and especially in the context of [the survivor’s] claim, such a belief was not reasonably open.”

Justice Forrest added that if Dr Waller truly held the belief that MSC would adopt the Ellis defence, despite the Catholic Church’s statement to the contrary, then it was “negligently held”.

The Supreme Court also found it was a failure of Waller Legal not to provide the survivor with a copy of the Calderbank offer, which would have allowed him to understand the basis of the MSC offer.

Justice Forrest noted that the survivor’s economic loss claim had a value that would have been “extremely difficult to accept”, and was not satisfied he would have been given “definitive advice” to proceed with a claim and institute proceedings on the basis that the economic loss claim was worth a million dollars, as he asserted.

“However, that does not preclude him from establishing causation on the basis that, after considering all the advice (as to the pros and cons of litigation … ), he would have instructed his lawyers to reject the offer and to proceed to litigate his claim,” Justice Forrest said.

It followed Justice Forrest was satisfied that Waller Legal’s negligence deprived the survivor of the valuable opportunity to pursue the economic loss component of his common law claim against MSC.