| 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…
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- Case
- [2025] VSC 324
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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