Abuse firm slated for appeal of negligence findings

In Justice Jack Forrest’s judgment, handed down in early June, Waller Legal’s negligence was found to have resulted in the former client losing an opportunity to claim damages for economic loss.

The judgment was also critical of Dr Waller’s defensiveness to any attack on her firm’s reputation and professional standards despite “the overwhelming evidence to the contrary”.

The firm was retained in 2015 and settled the matter two years later for $140,000, inclusive of legal costs, on the condition that the survivor renounce all legal rights against the Order of the Missionaries of the Sacred Heart (MSC) and several of its members.

The survivor said Waller Legal advised him to settle because it did not believe the Ellis defence – used by the Catholic Church to claim it did not legally exist and could not be sued – was a “significant, if not insurmountable, obstacle” to identifying the appropriate defendant.

While it would not be abolished until 2018, the Catholic Church indicated it would not use the Ellis defence from 2015.

In a media statement, Waller said she believed the decision would have consequences for the hundreds of victims who resolved claims against the Catholic Church between November 2015 and July 2018.

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“The judgment is effectively a get-out-of-jail free card for Catholic Church institutions,” Waller said.

“It makes it harder for victim survivors to claim against church institutions again, even though their earlier cases were resolved for much lower sums because the Ellis defence was the law at the time.”

Michael Magazanik, partner with Rightside Legal, rejected Waller’s assertion that Justice Forrest’s decision was “a blow to abuse survivors”.

“On the contrary, it’s an important win for an abuse survivor badly let down by his own lawyer,” Magazanik told Lawyers Weekly.

In addition to the negligence claim, Rightside Legal assisted the former client to secure a settlement with MSC of $400,000, plus costs, in May 2023. This was in addition to the sum he originally received.

“My client is not surprised by Waller Legal’s appeal.

“He just wishes that Dr Waller had been as determined to litigate his claim for him in 2016 as she is now, nine years later, to litigate against him, a psychiatrically damaged sexual abuse survivor.

“My client put his faith in Dr Waller and Waller Legal, and the court found that Waller Legal obtained a negligent and undervalued settlement for him,” Magazanik said.

The application set out 16 grounds of appeal, including a claim that Justice Forrest failed to find Waller Legal acted reasonably in advising the survivor that they faced significant difficulties in the claim for damages.

Rightside Legal was pursuing a class action against Waller Legal, but Justice James Gorton held it was not an effective or efficient means of dealing with claims because each case was distinct.