Judge blasts lawyer’s “furphys” after firm’s wrong advice costs abuse survivor a massive payout.
A leading Victorian law firm specialising in institutional child sexual abuse cases has been ordered to pay over $260,000 in damages to a former client after a damning Supreme Court finding of professional negligence.
The case centred on a man who suffered horrific abuse at Monivae College during the late 1970s. He had originally accepted a settlement worth $140,000—advised by his former lawyers at Waller Legal that pursuing further legal action was futile. However, the court has now found that the advice was “negligent”, “incorrect”, and ultimately deprived him of the chance to pursue far greater compensation.
Justice Jack Forrest handed down the stinging judgment, targeting Waller Legal’s principal, Dr Vivian Waller, for her unflinching defence of her firm’s conduct—despite what the judge described as “overwhelming evidence to the contrary.”
The survivor, whose identity remains protected, first approached Waller Legal in 2015. He was seeking redress for abuse suffered at the hands of two brothers belonging to the Order of the Missionaries of the Sacred Heart (MSC). Acting on advice from the firm, he agreed to a $140,000 settlement that excluded economic loss claims and released MSC and associated individuals from further legal action.
Embed from Getty ImagesIt wasn’t until 2022—after new representation from Rightside Legal—that the settlement was partially set aside. The survivor then successfully secured an additional $400,000 for general and special damages. But the economic loss component remained unresolved, prompting him to sue Waller Legal for negligent advice.
In court, it emerged that Waller Legal had advised against litigation based on what’s known as the “Ellis defence”—a legal strategy previously used by the Catholic Church to argue that its entities could not be sued due to lacking a legal personality. Although the Ellis defence wasn’t officially dismantled until 2018, the Church had publicly stated in 2015 that it would no longer rely on the controversial tactic.
Nevertheless, Dr Waller continued to advise that there were “significant, if not insurmountable” barriers to pursuing MSC, stating that suing individual perpetrators would be “fraught with difficulty” and the case itself “worthless.”
Justice Forrest wasn’t convinced.
He said those claims were little more than “furphys”, especially given that MSC had not raised a single one of the supposed barriers during 2017 settlement negotiations. “The only rational conclusion is that the sole defence advanced by MSC … related to the quantum of his claim and not the liability,” he stated.
Further criticism came over Waller Legal’s failure to provide the survivor with a Calderbank offer—a critical document that would have given him insight into the MSC’s legal position and allowed him to properly consider his options.
Though the survivor initially claimed his economic loss was worth around $1 million, the judge said he wasn’t satisfied that such a valuation could be definitively supported. However, that didn’t undermine the broader claim that Waller Legal’s negligent advice had deprived him of the opportunity to make an informed legal decision.
Justice Forrest concluded that, with competent legal advice, the survivor would have likely rejected the settlement and pursued full litigation. That lost chance, the court ruled, was both significant and compensable.
This ruling could be just the beginning for Waller Legal. Media reports suggest other former clients are preparing to launch similar claims over the firm’s past handling of child abuse cases.
For Dr Waller and her firm—once seen as stalwarts of justice for abuse survivors—the fallout from this judgment could be severe. And for the survivor at the centre of this case, it’s a bittersweet vindication after years of trauma, legal missteps, and a battle for justice that was nearly derailed by those meant to secure it.
