Waller Legal to appeal Supreme Court negligence ruling in historical sex abuse case

A law firm that was found to have given negligent advice to a Catholic Church sexual abuse survivor, and was ordered to pay $263,000, is fighting the landmark decision.

Lawyer Dr Vivian Waller. (Photo by Michael Dodge/Getty Images)

A law firm found by a Supreme Court judge to have given negligent advice will appeal the decision.

Last month the Geelong Advertiser revealed Waller Legal had been ordered to pay $253,000 in damages to an abuse survivor over his lost opportunity to claim economic loss damages.

Philip, not his real name, had been abused by two Catholic Brothers while boarding at Monivae College, run by the Missionaries of the Sacred Heart (MSC), in Hamilton in the late-1970s and hired Waller Legal to handle his initial complaint.

He received an initial settlement of $140,000 from MSC in 2017 and was later awarded another $400,000.

Following a Supreme Court trial earlier this year, Waller Legal was found to be negligent in what Philip’s lawyer, Michael Magazanik of Rightside Legal, described as a “landmark” ruling.

Justice John Forrest said Waller Legal had provided negligent advice, particularly around the Ellis defence.

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

In his ruling, Justice Forrest described “insurmountable obstacles” in Philip’s claim against MSC as put by Waller Legal were “furphys”.

On Thursday, the firm’s principal Dr Vivian Waller filed for leave to appeal the decision, believing it will have an adverse impact on victims, and describing the judgment as a “get-out-of-jail-free card” for Catholic Church institutions.

Waller Legal’s application includes 16 grounds for appeal.

“At least 300 institutional abuse victims are worse off because of this decision. I have spent my professional career fighting for victim survivors and their families, and after careful consideration and deliberation I believe an appeal is in their best interests,” Dr 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 in Victoria at that time.”

Waller Legal, which has been among the most prominent firms to specialise in abuse cases, is understood to face further lawsuits from former clients.

In February, the Supreme Court declassed, or broke up, a class-action lawsuit brought against the firm by a group of up to 700 former clients arguing it provided inadequate advice.

Right side Legal, the firm that represented Philip in his case against Waller Legal, represented 61 of those clients.

Justice James Gorton said the group member’s claims were “distinct” and needed to be assessed their own criteria, including, but not limited to, the actual advice given and the legal context at the time.

“This group proceeding will not provide an efficient and effective means of dealing with the claims of group members and it is in the interests of justice that it no longer continue as a group proceeding,” Justice Gorton said in his ruling.

Now the matters are declassed, cases must proceed individually.

Originally published as Waller Legal to appeal Supreme Court negligence ruling in historical sex abuse case