Catholic sex abuse survivor wins ‘landmark’ negligence suit against Waller Legal

A man who was abused as a boy at a western Victorian Catholic school has won a “landmark” lawsuit against the law firm that represented him in his initial claim.

The Supreme Court of Victoria. Picture: NewsWire / Diego Fedele

A survivor of sexual abuse at a western Victorian Catholic school has won a “landmark” ruling after suing the law firm that initially handled his complaint for negligence.

Philip, not his real name, sued Waller Legal regarding the adequacy of advice it provided when it represented him in his claim against the Catholic order who ran Monivae College in Hamilton.

Philip, who spent some of his youth in Lorne and Geelong, boarded at the school in the late 1970s where he was abused by two Catholic brothers.

On Friday, following a trial earlier this year in the Supreme Court, Judge John Forrest handed down his decision, awarding Philip $263,000.

Lawyer Dr Vivian Waller, pictured in 2019. (Photo by Michael Dodge/Getty Images)

Speaking to the Geelong Advertiser, Philip said he felt mixed emotions following the judgement, but was relieved and hoped it paved the way for other survivors who may have received substandard advice.

“When I saw Waller Legal, they were really the only show in town that were handling these type of cases,” Philip said, adding it felt like a “robotic, conveyor-belt” handling of claims.

According to Justice Forrest’s judgement, Philip retained the firm, led by Dr Vivian Waller, in October 2015 when he began legal action against the Missionaries of the Sacred Heart (MSC), the Catholic order that ran Monivae College.

In February 2017 Philip settled his claim against MSC for $140,000.

Four years later, Philip launched a fresh suit against MSC and he was later awarded another $400,000.

One of Philip’s abusers, former Catholic Brother Edward Mamo, was seperately jailed in 2013 and 2015 for abusing more than a dozen boys at Monivae College in Hamilton between 1973 and 1981.

However, the judge who set aside the initial settlement agreement refused to set aside the part related to economic loss, and Philip took Waller Legal to court for neglilence and deceptive or misleading conduct.

Nine witnesses gave evidence at the trial, including Philip and Dr Waller, and a “vast number” of documents were tendered.

While Judge Forrest’s roughly 70,000 word judgement was not entirely in Philip’s favour, the judge said he was satisfied Philip had established several aspects of advice given to him by Waller Legal were wrong.

However, Judge Forrest found Waller Legal had not engaged in misleading or deceptive conduct under Australian consumer law.

Justice Forrest considered that Dr Waller’s belief regarding the “Ellis defence” was “negligently held” and the advice provided to Philip from late-2016 to early-2017 as to its effect on his claim was “incorrect”.

The Ellis defence refers to legal technicalities that made suing Catholic clergy difficult, as Australian law does not recognise the Catholic Church as a legal entity that can be sued in its own right for child sexual abuse.

Judge Forrest said Philip was advised “that he had no viable claim (including an economic loss claim) and that he should accept the MSC offer”.

Waller Legal asserted that a “series of obstacles” effectively “rendered any claim … worthless”.

“The reality is that in the context of (Philip’s) case and its defence by MSC these so-called insurmountable obstacles are furphys,” Judge Forrest said in his judgement.

“Not one of the points now identified by Waller Legal and described as constituting an insurmountable obstacle was mentioned by MSC in the negotiations to settle (Philip’s) claim in 2016 and 2017.”

When contacted by the Geelong Advertiser, lawyers representing Waller Legal said in a statement the firm was “reviewing the judgement” and considering an appeal.

“Waller Legal founder and principal Dr Vivian Waller has represented and advocated for hundreds of survivors of institutional sexual abuse for almost 30 years, and will continue to do so,” the statement said.

“She has been instrumental in agitating for important law reforms for survivors.”

Philip’s lawyer, Michael Magazanik of Rightside Legal, said Judge Forrest’s judgement was a “landmark decision”.

“Many, many survivors will be looking at this Judgement, including a great many abused in schools and institutions around Geelong,” he said.

“Abuse survivors often grapple with lifelong consequences and when decades later they seek legal help, they need and deserve excellent advice and full compensation.”

Mr Magazanik said the judge found Waller Legal had failed Philip.

“He should have got a better result and should not have had to go through the last few years of legal wrangling including giving evidence in the trial against his former lawyers,” he said.

“All of that was a struggle for a very brave and determined man who had endured terrible trauma as a child.”

Originally published as Catholic sex abuse survivor wins ‘landmark’ negligence suit against Waller Legal