a day ago
Victorian sexual abuse survivor wins 'landmark' case against Waller Legal
A survivor of sexual abuse at a Catholic school in Victoria has won a claim against his ex-lawyers, after suing the law firm for negligence.
The survivor was abused at Monivae College in Hamilton in the late 1970s by two Catholic brothers and was originally represented in his lawsuit against the Catholic order by Waller Legal in 2015.
He first settled his claim against the Order of the Missionaries of the Sacred Heart (MSC) for $140,000 in February 2017.
He later went on to sue Waller Legal, claiming the firm was negligent and provided inadequate advice when representing him in that claim.
Last week, in a judgement against Waller Legal, Supreme Court Justice Jack Forrest awarded the survivor $263,000.
Rightside Legal partner Michael Magazanik, who represented the survivor in his action against his ex-lawyers, described it as a "landmark" decision.
The survivor, who legally cannot be identified, told the ABC he felt satisfied with the judgement.
"It's been a long process," he said.
"I just kept fighting, and I'm hoping that my victory, and ultimately the judgement, will encourage others to pursue their claims to the full amount."
He said any others who felt dissatisfied at their settlement should seek new legal representation.
Under its principal solicitor Dr Vivian Waller, Waller Legal is among the most prominent specialist abuse law firms in Melbourne.
Another lawyer at the firm was responsible for the day-to-day management of the survivor's case against MSC.
In a statement, lawyers representing Waller Legal said the law 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," it said.
"She has been instrumental in agitating for important law reforms for survivors."
MSC said due to ongoing legal matters, the Catholic order would not comment
The survivor suffered the abuse between the age of 11 and 12, and said when he first began pursuing legal action against the MSC in 2015, Waller Legal seemed to be the only firm helping victims of historic child abuse.
He described the process with Waller Legal as being "like on a conveyer belt".
The survivor took the firm to court alleging negligent advice and misleading conduct in relation to both the handling of his economic loss (lost earnings) claim and the advice given to him.
The Ellis defence was repeatedly referenced in Justice Forrest's judgement, which refers to a legal technicality that prevented abuse survivors from suing unincorporated organisations, including churches.
In his ruling, Justice Forrest said Waller Legal's belief in the efficacy of the Ellis defence was "misconceived and negligently held at the time" the survivor was represented by the firm.
Justice Forrest also said advice that any claim faced "insurmountable obstacles" were "furphies".
"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 … in 2016 and 2017," the judgement stated.
The judge threw out the allegation of misleading conduct.
Mr Magazanik began representing the survivor in 2019.
In 2021, the survivor launched a fresh suit against MSC, and in 2022 settled his claim for an additional $400,000.
In this latter case, the judge refused to set aside the part that related to his claim for economic loss.
"My client has enormous endurance," Mr Magazanik said.
"He's been through two police processes in relation to his abusers.
"This is a point of principle for him. He wanted to stand up for what he thought was right."
Of the two Catholic brothers accused of abuse in the case, one has been sentenced in 2013 to two years and three months in prison, while the other had not been convicted of any criminal offences.
Mr Magazanik said Rightside Legal had separately been pursuing a class action lawsuit over allegations the firm failed to sufficiently claim for lost earnings, but the Supreme Court had found the details of each case were too different for a group action to progress.
He said many of those in the class action were now contemplating individual cases against Waller Legal.
"We will read this decision very carefully and give each of them individual advice about their prospects," he said.
