Pearce v Waller Legal - [2025] VSC 324

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROFESSIONAL LIABILITY LIST

S ECI 2022 00957

GARY PEARCE	Plaintiff
v
WALLER LEGAL PTY LTD (ACN 167 030 757)	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 30–31 January, 4–7, 17–18 February, 4 March 2025
DATE OF JUDGMENT:	6 June 2025
CASE MAY BE CITED AS:	Pearce v Waller Legal
MEDIUM NEUTRAL CITATION:	[2025] VSC 324

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NEGLIGENCE – Professional liability – Negligence claim regarding adequacy of advice given by lawyer to client in historical institutional sexual abuse claim against unincorporated religious order for abuse suffered by plaintiff at Catholic school managed by order – Plaintiff advised to settle general damages and not make ‘formal’ economic loss claim in circumstances where scant evidence of plaintiff’s work history due to failure to file tax returns – Defendant law firm believed Ellis defence would be taken and unincorporated association would not name appropriate defendant – Defendant law firm’s belief as to obstacles facing plaintiff in making common law claim negligently held – Law firm gave erroneous advice – Breach of duty of care established – Causation established.

DAMAGES – Difficultly in assessing value of a loss of opportunity to litigate – Not possible or appropriate to assess loss by way of arithmetical calculation – Necessary to undertake informed estimation.

MISLEADING OR DECEPTIVE CONDUCT – Claim made under s 18(1) of the Australian Consumer Law – Claim framed as misleading conduct by silence of junior solicitor in failing to correct asserted error of counsel – Relevant conduct by barrister not law firm – Defendant law firm did not engage in actionable conduct within meaning of s 18.

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Badenach v Calvert (2016) 257 CLR 440, applied.

Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; Taseska v Carus [2019] VSC 342; Rosenberg v Percival (2001) 205 CLR 434; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Talacko v Talacko (2021) 272 CLR 478; Jadwan Pty Ltd v Rae & Partners (a firm) (2020) 278 FCR 1, referred to.

Wrongs Act 1958, ss 51(1)(a), 52, 58, pt X div 5.

Australian Consumer Law, s 18.

Evidence Act 2008, ss 135(a), 55, 140.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Hammond SC with Mr J Gordon	Rightside Legal
For the Defendant	Mr P Solomon KC with Mr M Tehan	Landers & Rogers

TABLE OF CONTENTS

The issues

Factual background

Mr Pearce’s early life

Monivae: 1977–1978

The Monivae abuse

Mr Pearce’s education — post Monivae

Mr Pearce’s life after leaving school

Mr Pearce’s employment history

Events following the settlement of Mr Pearce’s claim

The trial

The application to adjourn the trial

Evidence at the trial

Developments in the prosecution of civil institutional abuse claims

The evidence relating to Waller Legal’s handling of Mr Pearce’s claim, and particularly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 324
Decision Date: 6 June 2025

CaseChat Overview and Summary

The plaintiff brought a claim against the defendant law firm for professional negligence in the context of a historical institutional sexual abuse claim against an unincorporated religious order for abuse suffered by the plaintiff at a Catholic school. The dispute involved the adequacy of advice given by the law firm regarding the plaintiff’s settlement strategy and economic loss claim. The matter was heard in the Supreme Court of Victoria.

The central legal issues revolved around whether the defendant law firm negligently provided incorrect advice, breached their duty of care, and whether the plaintiff suffered a loss as a result of this advice. The court needed to determine if the law firm’s belief about the obstacles facing the plaintiff in making a common law claim was negligent, and if this belief was erroneous. Additionally, the court had to assess whether the law firm engaged in misleading or deceptive conduct under section 18(1) of the Australian Consumer Law.

The court found that the law firm had indeed negligently believed that certain obstacles would prevent the plaintiff from successfully pursuing a common law claim. This belief was held negligently, and as such, the law firm breached their duty of care by providing erroneous advice. The plaintiff was found to have suffered a loss due to this advice, which was held to be causative of the plaintiff’s damages. In terms of misleading or deceptive conduct, the court held that the law firm did not engage in any actionable conduct under section 18 of the Australian Consumer Law. The relevant conduct was attributed to the barrister, not the law firm.

The court made an informed estimation of the plaintiff’s loss, recognising that a precise arithmetical calculation was not possible or appropriate. The court awarded the plaintiff a sum in damages, reflecting the loss of opportunity to litigate the economic loss claim.

Orders