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 his economic loss claim
Mr Pearce’s evidence as to his mental health
Mr Pearce’s medical treatment and medical opinions relating to his claim
The evidence of the other non-expert witnesses called by Mr Pearce
Kathryn Taylor — Mr Pearce’s mother
Charmaine Radke — Mr Pearce’s first ex-wife
Sarah Higgins — Mr Pearce’s second ex-wife
The evidence of Waller Legal’s handling of other institutional abuse claims
Michael Schack
Andrew Ure
John Negri
Ms Natasha Savic’s affidavit
Evidence of Dr Waller
Expert Evidence — Dr Morrison KC, the barrister
First report
Supplementary Reports
Oral evidence
Expert Evidence — Mr Thompson, the accountant
First report
Second, third and fourth reports
Findings of fact
The misleading conduct claim
Negligence — the scope of the duty of care
Did Waller Legal breach its duty of care to Mr Pearce?
Did Waller Legal adequately investigate and/or prepare the economic loss claim on behalf of Mr Pearce?
Did Waller Legal correctly advise Mr Pearce as to the strength of the Ellis defence and other potential obstacles to the prosecution of his economic loss claim?
Did Waller legal advise Mr Pearce correctly as to the nature and value of this economic loss claim — and that he was able to make such a claim?
Did Waller Legal abandon Mr Pearce’s economic loss claim contrary to his instructions?
Did Waller Legal advise Mr Pearce correctly as to any obligation on his part to make DHS repayment from any settlement?
Should Waller Legal have provided Mr Pearce with a copy of the Calderbank offer made by MSC?
Did Waller Legal act unreasonably in advising Mr Pearce to settle for $140,000 inclusive of costs rather than advising him to proceed with the claim?
Causation
Principles
The counterfactual scenarios
Proposed tender of the reasons of Forbes J
Analysis
Damages
Principles
Analysis
Conclusion

HIS HONOUR:
1	In October 2015, Gary Pearce retained Waller Legal Pty Ltd (‘Waller Legal’) to act on his behalf in relation to alleged abuse while he was a student at Monivae College, Hamilton (‘Monivae’).
2	Mr Pearce instructed Waller Legal that he had been abused in 1977 and 1978 by two brothers of the Order of the Missionaries of the Sacred Heart (‘MSC’).
3	Waller Legal, of which Dr Viv Waller is the principal, prepared Mr Pearce’s case against MSC and arranged for an informal settlement conference (‘ISC’) with MSC and its lawyers in November 2016.
4	The claim did not resolve at the ISC but negotiations continued. In January 2017, Mr Pearce conferred with Dr Waller to discuss settlement of his claim.
5	In February 2017, Mr Pearce settled his claim for $140,000 inclusive of legal costs (‘the settlement agreement’). As part of the settlement agreement, he renounced all his legal rights against MSC and several MSC brothers. In addition, it was acknowledged that no claim for economic loss had been made by Mr Pearce and that the settlement sum did not include any economic loss component.
6	In February 2021, Mr Pearce issued a fresh proceeding against MSC. In November 2022, her Honour Justice Forbes of this Court set aside the part of the settlement agreement which related to Mr Pearce’s claim for general and special damages but refused to set aside the part that related to his claim for economic loss. He later settled his claim for general and special damages for $400,000 (in addition to the $140,000 he had received from the initial settlement).
7	Mr Pearce in this proceeding sues Waller Legal for negligent advice and misleading conduct in relation to both Waller Legal’s handling of his economic loss claim and the advice given to him about that part of his claim. He contends that Waller Legal’s negligence and misleading conduct resulted in him losing the right, or the opportunity, to recover substantial damages for economic loss from MSC.
8	Waller Legal disputes that it was negligent or misleading and says, if it was, that Mr Pearce has not proved that it resulted in any loss.
The issues
9	The statement of claim is prolix and complex; it does little to assist in determining the real matters in dispute.
10	Through a combination of a joint statement of issues and helpful advocacy, I consider that the following issues (some of which are intertwined) have to be resolved in determining whether Waller Legal exercised reasonable care in its handling of Mr Pearce’s claim.
11	First, did Waller Legal adequately investigate and/or prepare the economic loss claim on behalf of Mr Pearce?
12	Second, did Waller Legal correctly advise Mr Pearce as to the strength of the Ellis defence and other potential obstacles to the prosecution of his economic loss claim?
13	Third, did Waller Legal advise Mr Pearce correctly as to the nature and value of his economic loss claim ─ and that he was able to make such a claim? 
14	Fourth, did Waller Legal abandon Mr Pearce’s economic loss claim contrary to his instructions?
15	Fifth, did Waller Legal advise Mr Pearce correctly as to any obligation on his part to repay Department of Human Services (‘DHS’) payments he had received from any settlement that included an allowance for economic loss?
16	Sixth, should Waller Legal have provided Mr Pearce with a copy of the Calderbank offer made by MSC?
17	Finally, did Waller Legal act unreasonably in advising Mr Pearce to settle for $140,000 inclusive of costs rather than advising him to proceed with a claim?
18	If it is established that Waller Legal acted unreasonably in any of the ways described above, then the next question is, has such conduct been causative of any loss? Or, to put it another way, would there have been a different outcome if Mr Pearce’s claim was handled in a different way by a solicitor acting reasonably?
19	If the answer is affirmative, then Mr Pearce must demonstrate that he lost a valuable opportunity, and the Court then evaluates the value of that loss.
20	An alternative claim based upon breach of s 18 of the Australian Consumer Law (‘ACL’) is also made against Waller Legal on the basis that it failed to advise Mr Pearce that he ‘almost certainly’ would not have to repay Centrelink the money received by him out of any settlement which included an allowance for economic loss.
Factual background
21	The following sets out the relevant events relating to Mr Pearce’s claim, its settlement and subsequent events. 
Mr Pearce’s early life
22	Mr Pearce was born on 3 October 1965 in the United Kingdom.
23	Mr Pearce immigrated to Australia in 1968, when he was three years of age. He was accompanied by his parents, his brother, Ronnie, and his grandparents.
24	In July 1970, his mother gave birth to his brother, Nicholas.
25	Mr Pearce attended primary schools at Toorak and Gardenvale. He was also a talented dancer as a child, to the point of obtaining a part in a professional production of the musical, Gypsy.
26	At this time, his father worked full-time as a waiter, and his mother raised the three children.
27	At the end of Grade 4, Mr Pearce’s parents separated. His grandparents had purchased an establishment known as The Chalet in Lorne, and he went to live with them and attended Lorne Primary School.
28	Subsequent to attending Lorne Primary School, in 1974 Mr Pearce went to Sydney with his father and spent most of his time swimming. He then returned to live with his mother in Caulfield but had a period of approximately six months when he did not attend school.
29	In 1976, Mr Pearce’s mother commenced looking for an appropriate school for him to resume his education. He sat an entrance exam for Catholic schools and was offered places at St Patricks College, Ballarat and Monivae College, Hamilton.
Monivae: 1977–1978
30	Mr Pearce says that he elected to attend Monivae and commenced Year 7 (Form 1) at the age of eleven. He resided at the boarding school, which was located on the outskirts of Hamilton, and attended the day school, which was in the Hamilton township. He would travel by bus to the day school.
31	At that time, Father Uhr was the rector of the school and Brother Xavier, the boarding master. Brother Frith was a teacher. Brother Mamo was a groundsman and handyman. In the first term of Mr Pearce’s Year 7 (in 1977), he was assaulted by Brother Mamo. In 1978, when in Year 8, he was assaulted by Brother Frith. The details of the assaults as described by Mr Pearce are set out subsequently.
32	Most of Mr Pearce’s school reports for this period were produced and can be summarised as follows:
(a)	The Form 1 (Year 7), term 1 report (described by his lawyers as pre-abuse) showed average grades of ‘B’ and ‘C’ across all subjects, with mathematics being his strongest performance. It was commented that Mr Pearce’s work had improved as he gained more confidence, however it was said that he needed to be more responsible in his studies. He was noted as having a brilliant personality with great potential but had a lack of self-control in his conduct.
(b)	The Form 1, term 2 report (described by his lawyers as post-abuse) again showed average performance in all subjects, aside from mathematics. The report noted that his results had improved from first term but that he could be a real nuisance in the classroom as he distracted others. It was further noted that his attitude, comments and disruptions had been unacceptable, and he had ‘a most unsatisfactory term’.
(c)	The Form 1, term 3 report noted that his marks were ‘very low in a number of subjects. And he is particularly weak in written expression’. It also noted his poor attitude to classroom behaviour. It was stated that he ‘finds it almost impossible to conform to classroom standards of conduct and behaviour without strict supervision. He is continually promising to change or improve, but this never happens, except when he is getting individual help, personal encouragement and praise’.
(d)	The Form 2 (Year 8), term 1 report noted that he had a poor approach to his studies, with average grades again recorded across all subjects. It stated that he was ‘very suspect in the area of trust and integrity’ and that ‘many students will have nothing to do with him, simply because he cannot be trusted’.
(e)	Mr Pearce’s academic performance remained similar in his Form 2, term 2 report, which noted that his general attitude had improved, although he could still be a nuisance in some subjects. His behaviour was stated as being satisfactory although he was described as ‘a great manipulator of other students’.
33	Towards the end of Year 8 in 1978, Mr Pearce was involved in an incident on a bus taking him and other students from the boarding school to the day school. Mr Pearce said that he and a group of boys decided it would be a good idea to set fire to the back seat of the bus. After the incident, he was taken out of class and back to the boarding school. He said his packed bag was in the foyer and he was told that he was expelled and would be leaving Monivae that day. Mr Pearce’s mother was notified, and he was placed on a train from Hamilton back to Melbourne.
34	Mr Pearce said that he did not engage in this type of behaviour before he went to Monivae.
The Monivae abuse
35	Mr Pearce has recounted the details of the Monivae abuse on a number of occasions. In November 2014, he made a statement to Victoria Police in relation to the abuse by Brother Mamo. The relevant parts read as follows:
	At sometime in my first term at Monivae in 1977 when I was still 11 years old I went with some other students to the back of the pine trees after dinner whilst they had a smoke. One of the students AB was with me at the time. Brother Mamo Eddie [sic] appeared right in front of us with a torch. Brother Mamo told myself and AB to come with him. I had no idea what was going to happen. …
	We kept following Brother Mamo down a dark corridor underground, under the school. … 
	We came to the end of the corridor and got to a room at the end of it which had a lock on the door. Brother Mamo unlocked the door and put the light on. Once he put the light on I realised we were in a laundry type room with sheets or towels folded and piled up. I think he looked [sic] the door behind us. Brother Mamo pulled out a a black leather strap which had a raised edge along two lines along the length of it. He pulled this out of some folded sheets or towels it had been wedged in the middle of them. The sheets and towels were on wooden shelves around two sides of the room. The strap was about 50 centimetres long. I had never had the strap before I didn’t even know they existed. I was so naïve that I thought he had pulled out a snake initially. I had never been given any pain by anyone and I couldn’t comprehend that he was going to hurt me. I still didn’t even know he was a Brother.
	As soon as the strap appeared AB pulled down his pants and jocks. AB was still to the right of me standing beside me. There were two tea chests in front of us side by side. There were made of a very thin type of chipboard. I had seen them at my grandparent’s chalet that they operated in Lorne when I lived with them. Everything was happening so fast. Brother Mamo then gave me a choice. He told me that I could go to the Rector and tell him that I was caught up the back of the oval smoking or I could receive six straps on the backside. I decided to just follow AB as he seemed to know what to do. I pulled down my pants and I left my jocks on. Brother Mamo then told me, no, no, no you have to take your jocks off too. Once I had done this he then hit AB six times across his bare bum. AB was an extremely tough kid and his straps happened very quickly. AB was leaning over the tea chest but not resting on it. He had his hands on the tea chest and was slightly bend [sic] over. He also had his legs as far apart as they would go with his pants around his ankles. His hits were over and done within 2 minutes. 1 could see out the corner of my eye AB’s bare buttocks and there were marks all across his bum. The sound of the strap hitting AB was causing me to cry even more as I could tell he was being hit with a lot of force. I think AB pulled his pants up after he received six straps and he stayed in the room until I had been dealt with.
	As soon as I had seen the strap come out and realised what it was I started crying I was inconsolable. Brother Mamo gently guided me to put me where he wanted me to be. As he was talking to me he used his foot to gently spread my legs apart to where he wanted them. He also gently leant me over so I was also leaning on the tea chest with my hands. As he was doing this he was saying things along the lines of don’t be a baby. The first strap I received took my breath away the pain was unbearable. I couldn’t comprehend how I could handle receiving another five more straps from him. I was trying to negotiate with to try to get some control back of the situation. I was also praying for it to stop. The only thing I managed to get him to do was to not let him to hit me so hard. I took about 20 minutes for me to get the six straps. In between the hits of the strap he would console me by talking to me. The tea chests were in the middle of the room in between the door and the far wall. Brother Mamo sat on a bench or a stool in front of the tea chests and talked me asking me what my interest [sic] were. He was telling me he was trying to take my mind off the punishment. I was shaking in fear. He moved around the room sometimes standing to the left of me and he put his hand on my shoulder and lent over the tea chest with me telling me things like we are in this together, this will be better than going to the Rector, I’m helping you, you’re new here and things like that. He touched me on my backside rubbing over the welt marks he had made with the strap. As he was rubbing my bum Brother Mamo was saying I’ll hit you on the other side if this side hurts, meaning the other side of my bum. I was desperately trying to make eye contact with him to plead with him. I did get the six straps but he probably eased off the force he used as the straps went on. I was still in an incredible amount of pain.
	At end of the six straps he came over to me and letting me know it’s over. It was almost like he had to make friends with me before I left the room. I now feel that because I was new to the school and he didn’t know anything about me he wanted to learn a little bit about me. I pulled up my pants and the three of us left the laundry and he took us back out of the corridor. He had us thank him and we stood outside talking to him for a while. As soon as Brother Mamo turned around and walked off AB and I ran as fast as we could back to the recreation room.
	… 
	Later the night after being punished by Brother Mamo sometime before bed when I was back in my dorm I told Brother Xavier what had happened with Brother Mamo. I can’t remember in what detail I told it to him. Brother Xavier was aware of Brother Mamo’s method of punishment but was more interested in prevention rare [sic] than a cure. Brother Xavier told me not to go to the pine trees then I wouldn’t have this problem again.
	… 
	The second time I was taken to the linen room to be punished by Brother Mamo was within a few weeks of the first time. It would have been before the Easter school holidays in the first term of 1977. I was still eleven years old. I can’t remember what I did wrong to be called over by Brother Mamo and taken back to the linen room. I know it was something minor. It was earlier in the day than the previous time that I had been taken there but I can’t remember what time of the day it was. I remember I wasn’t far from the laundry this time as it didn’t take as long to walk there this time. As we approached the laundry I heard him get his keys out to unlock the linen door. The linen room was at the end of a dark corridor and everything echoed in the corridor. We went into the room and I’m pretty sure he locked the door behind us. Once inside brother Mamo got the strap out from the sheets or towels. It was the same strap he had hit me with the first time, the black leather one. He placed the strap in front of me. Once I got inside the door I went straight in and didn’t look around. Brother Mamo gave me the option of going to the Rector or getting punishment then or there. I told him that I wasn’t going to and I’m not taking the punishment. He told me to the Rector. I told him that I wasn’t doing that either. I think I did this, as last time I felt that there was a weakness in him in that he wanted to be liked and I thought that I would try and exploit this. Brother Mamo just left the room and turned the light off and left me in there in the darkness. I think he left me in there for at least an hour. In that hour I didn’t even look around the room I was too scared too. I didn’t move from the spot that I was in, which was in front of the tea chest with the shelves to the front and side of me and the door behind me. I didn’t even check if he had locked the door.
	I had a heightened sense of sound as I was standing in a dark room. I remember hearing the sound of the keys and Brother Mamo came back to the room and asked me if I had made a decision. As I have said my senses were heightened and my memory is very strong of what he said to me. I told him, I’ll do it.’ I then just dropped my pants and jocks and spread my legs and leant over the tea chest in front of me. Brother Mamo didn’t direct me as to what to do I just did it from the last time I was in there. He hit me six times across my bare buttocks. It still took a while as I was crying. In between hits Brother Mamo was consoling me by talking to me telling me things like you’ll be right and rubbing my bare buttocks where he had struck me with the strap at the same time. As soon as I had got the last strap I pulled my pants straight up and Brother Mamo let me out. I walked with him and at the end of the corridor we went our own separate ways. Coming out I remember that it was dark which felt weird as I went in there in daylight.
	… 
	The third time I was to receive punishment from Brother Mamo was at some stage after the second time. It was some time during Cricket season. Training started in between September as soon as footy finishes and games start in October. I don’t know how long after it was but it was still in 1977 my first year at Monivae. I would have been 11 or perhaps just 12 as my birthday is on the 3rd of October. On this day I was coming back from school and myself and some others ‘mooned’ some cars. By mooned I mean we pulled our pants down and exposed our buttocks to passing cars. I remember a few of us did it but I was the only one singled out to be punished. The Monivae junior school which is where year 7 and 8 students went to class was in town in Hamilton itself and we had to get the school bus to get there. Brother Mamo had been driving the school bus. He drove it quite often but not all of the time. We got off the bus and Brother Mamo had to go and park the bus and do whatever else he had to do with the bus. He had told me to meet him somewhere near the entrance to the laundry. The bus would be parked about 100 metres away from the laundry entrance. All of the other students would have went to the locker rooms to get changed in their sports uniform to go and do sport after school. I remained near the entrance in my school uniform waiting for Brother Mamo.
	Brother Mamo was walking in a direct line from the bus parking area to the laundry entrance. As he neared me I told him that I wanted to see the Rector. Brother Mamo kept walking to the laundry entrance and took a minute to digest what I had just said to him. He then said fine, it’s your choice. He then took me to the Rectors office on the first floor.
	Brother Mamo knocked on the Rectors office and said something to him and then sent me in alone. I can’t remember the Rectors name but we referred to him as Father. He asked me why I had been sent there. I told him what I had done and he asked me if Brother Mamo had given me options. I told him that he had but I chose to see you. He told me there was going to be some ramifications from this. As the Rector didn’t know me he called in Brother Mamo to find out what punishment would serve me best. Once he knew I loved sport he told me that I couldn’t play sport that weekend I had to do cleaning duties instead.
	… 
	The next time Brother Mamo punished me was in 1978 when I was in form 2 and 12 years old. This was the fourth time that it had happened. I can’t remember what I had done wrong. What ever I had done wrong Brother Mamo motioned for me to follow him to the linen room. I walked him behind him to the room and he got to the door and unlocked the door with a key he had on him. I can’t remember if he gave me the option of going to the Rector because as soon as I got in there I told him that I was considering playing Hockey. Brother Mamo was very encouraging telling me that I am making a good choice and that I should do it. He told me to come to training. He was very eager to come and have me play. He pulled the strap out from between the towels and sheets and put it in front of me. I just pulled my pants and jocks down, spread my legs and placed my hands on the tea chest so I was slightly bend over it without leaning on it. He then hit me with the strap I was crying and upset and Brother Mamo consoled me with words and rubbed my buttocks and between my legs using his hands in between hits with the strap. He may have brushed me on my genitals but I couldn’t say if it was intentional or not. I was in so much pain that all I was thinking about at the time was the pain I was in and not where he was touching me. After the last hit I pulled my pants up. As I had mentioned playing Hockey the conversation was alot [sic] more jovial and the atmosphere was alot [sic] more open to conversation afterward.
36	In November 2015, Mr Pearce made a statement to Victoria Police about the abuse committed by Brother Frith. The relevant parts are reproduced below:
	My first interaction with Brother FRITH was when I had a minor headache and one of my friends took me to the Infirmary and I spoke to Brother FRITH. I didn’t even know where the Infirmary was.
	The next time I went to the Infirmary was in the summer of 1977. I would have been either 11 or 12 years old depending on whether it was it [sic] before or after my birthday in October.
	It was a sunny Sunday afternoon and I wasn’t feeling well. I hadn’t gone home this particular weekend as I only went home every third weekend. Monivae had some trampolines that were located just before the oval and I went and lay down in the sun near them. It was a warm day but I remember I was feeling cold. I laid there for hours. Eventually somebody came up to me and asked me if I was okay. I told them that I couldn’t get up and that I was thirsty. It seemed like a long time later, but it may well have not been, Brother FRITH came along and helped to my feet. Brother FRITH took me to the Infirmary. I remember when I got to the Infirmary there were about 3 to 4 other students lying down in bed there. I didn’t know any of these boys as they were in higher year levels.
	The Infirmary was set up like a hospital room with about 6 to 8 beds in it. There was a TV and there was a bath in the middle or to the side of the room. I can’t remember exactly where it was in the room but I remember that the bath could be seen from all of the beds in the room. It certainly wasn’t in a separate room. The bath had two glass panels either side which was [sic] made of frosted glass. It definitely had a door but I can’t remember what type of door it was. The Infirmary was made up of 2 rooms. The one that I have just described and another long narrow room with a bench with Dettol, bandages etc. and a few stalls where students could come in and get cleaned up without needing to go to the infirmary.
	Not long after getting to the infirmary on this day Brother FRITH suggested that I have a bath and get comfortable. I remember being a little worried that the other boys could see me in the bath. Once I got inside the bath I realised that the boys could not see me through the frosted glass. Behind the frosted glass there was a small area with room to get changed and hooks to hang up your clothes. Brother FRITH ran the bath for me and left the area and by the time he returned I had got changed and I think he may have assisted me into the bath as I was very unsteady on my feet.
	When Brother FRITH returned and talked to me about my family. I told him about my Mum and that my Dad lived in Sydney. Brother FRITH looked down at my groin area and asked me if I had been shown how to wash my penis properly as I was not circumcised. Brother FRITH asked me to show me to show him how I wash my penis by pulling back my foreskin. I was really sick at the time and Brother FRITH made me feel like I wasn’t cleaning myself properly. I had no idea what to do and pulled my foreskin back a very small amount. Brother FRITH told me that it wasn’t satisfactory and asked me if I wanted him to show me what to do. I told him okay. Brother FRITH then took my penis and began pulling the foreskin back but there was some resistance to the skin going back all the way as far as would go. Brother FRITH didn’t push it. There was a soap dispenser near the bath and he got some soap and used his fingers he pulled my foreskin back and forth very gently almost using the tips of his fingers. Although I was very sick I remember this feeling uncomfortable and it being painful. When Brother FRITH first touched my penis his eyes went an unusual black colour and he got white froth around the corners of his mouth. His tongue also kept going in and out of his mouth similar to a lizard. I also remember Brother FRITH kept looking towards the door of the bath area. I don’t think the other boys would have heard what we were talking about nor would they have been able to see it. I realised what he was doing wasn’t right purely by the way he constantly kept looking around towards the door, keeping a watch in case anyone came near the bed. I didn’t have any pubic hair at the time. I had never had anyone touch my penis before.
	I can’t remember when I saw a Doctor but I know one did come and see me at some stage and I was diagnosed with Glandular fever. I was very weak and slept a lot. I have no idea where the Doctor was from. I ended up spending one month at the Infirmary with glandular fever.
	… 
	During my month in the Infirmary Brother FRITH ran a bath for me every night and every night Brother FRITH pulled my foreskin back and forth on my penis whilst I was in the bath. At the start of my visit to the Infirmary I was quite weak but as I got stronger Brother FRITH continued to pulled the foreskin on my penis back and forth even when I was capable of washing myself. Brother FRITH never washed nor touched any other part of my body whilst I was in the bath.
37	Brother Mamo pleaded guilty in the County Court to seven charges of indecent assault on a male person from February 1976 to December 1980 while he was at Monivae. He was sentenced on 22 February 2013 by his Honour Judge Leckie to two years and three months’ imprisonment, with a requirement that he serve a minimum term of 18 months before being eligible for parole.
38	Brother Mamo also pleaded guilty in the County Court to a further 21 charges of indecent assault on male persons, from 1973 to 1981 at Monivae. Several of these charges related to the abuse of Mr Pearce. Brother Mamo was sentenced on 11 December 2015 by his Honour Judge Smallwood to 34 months’ imprisonment, with 22 months of the sentence suspended. Mr Pearce attended both the plea and the sentence.
39	Brother Frith has not been convicted of any criminal offences.
Mr Pearce’s education — post Monivae
40	After being expelled from Monivae, Mr Pearce was placed at St Augustine’s Orphanage in Geelong, which, he said, was the only institution that would take him. He was there for between 18 months and two years, during which he attended school at St Joseph’s College. Mr Pearce described himself as a ‘terrible’ student.
41	Mr Pearce left St Joseph’s College when he went to live with his mother, after she purchased a house in Richmond. Subsequently, he attended Cathedral College in East Melbourne for six months before leaving school during Form 4 (Year 10). He said that he struggled with his studies at this school, where the teachers were predominately Brothers. He did not progress past Year 10.
Mr Pearce’s life after leaving school
42	After leaving school, Mr Pearce worked as a strapper/stable hand at various racing stables in Victoria and New South Wales. He said that prior to this, he had spent time on weekends and during school holidays working at Bart Cummings’ stables in Flemington, and that he had naturally gravitated to this type of work.
43	Mr Pearce said that he was promiscuous during this time and would have unprotected and casual sex. He also consumed alcohol excessively. He also said he earned money as a sex worker at age 16 for about a year. He described this as a shameful period and said that he tries not to think about it.
44	When Mr Pearce was 17 years old he met his future wife Charmaine, a nurse, whom he married a year or so later. At the suggestion of Charmaine, Mr Pearce began work in the hospitality industry. He initially worked at Two Faces restaurant in South Yarra, during which he was enrolled in a course at the William Angliss Institute, which he never completed.
45	Mr Pearce and Charmaine had two children (Kent, born approximately 1984, and Jacob, born approximately 1987) together. Mr Pearce said that the relationship ended due to his infidelities. Charmaine gave evidence at the trial. 
46	Following his separation from Charmaine when he was 21 years old, Mr Pearce commenced a relationship with Tania. A daughter, Holly, was born when he was 22. Mr Pearce and Tania remained in a relationship for three years. They separated due to what he described as dissatisfaction with each other. Mr Pearce said that he was unfaithful to Tania with multiple women during this period.
47	At age 25 or 26, Mr Pearce contracted Hepatitis C.
48	In his late twenties, Mr Pearce commenced a relationship with his second wife, Sarah. They married in 2001 and had three children together (Jack, Will, and Harry), before separating in 2010. Mr Pearce said that during this period he would experience flashbacks of the abuse when he experienced difficulties controlling his work environment, and that he would drink until he fell asleep as a coping mechanism. Sarah gave evidence at the trial.
49	Mr Pearce sought medical assistance in relation to poor mental health in 2010, after experiencing suicidal thoughts for the first time. During this period, he was admitted as a psychiatric inpatient at Monash Hospital, where he stayed between five and seven days.
50	In 2015, when he was approximately 43 years old, Mr Pearce commenced a relationship with his current partner, Karen. They have one child together, Ryder. The family lived in rented premises at Mentone and in 2015 both were working, with Mr Pearce employed as a chef at Aero Bar at Moorabbin Airport.
51	In September 2015, Mr Pearce was referred by his GP, Dr Peter O’Brien, to a psychologist, Ms Janice Whetton. He attended sessions with her into 2016.
52	In approximately mid-2016, Mr Pearce experienced liver dysfunction related to his Hepatitis C which necessitated medical treatment and his taking approximately several months off work. 
53	Subsequently, he returned to work as a chef at Mordi Pizza Pasta and finished up in 2023. At the time of the trial, he was unemployed and living in Mentone with his partner, Karen. 
Mr Pearce’s employment history
54	Mr Pearce’s employment history since finishing school has been unstable and often undocumented. Two things stand out. The first is that throughout his working life until 2017 he had never filed a tax return and only paid income tax when on an employer’s ‘books’.
55	The second is the inconsistencies or holes in his accounts of his working history. As mentioned earlier, after leaving school he worked as a strapper/stable hand and a chef, both in Melbourne and in rural Victoria and NSW. He also worked for short periods as a builder’s labourer, cleaner, salesperson, and private investigator. He worked as a rural horse trainer for a number of years. These roles varied between casual, part-time, and full-time positions. At times, Mr Pearce was paid in cash and, in some jobs, he was paid ‘on the books’. For significant periods, he was unemployed and in receipt of Commonwealth benefits.
56	Below is a table based on one prepared by his current solicitors, Rightside Legal (‘Rightside’) on Mr Pearce’s instructions in May 2022, which sets out in general terms his employment history from the age of 18. Unfortunately, it is, in a number of respects, inaccurate and incomplete, but at least it gives an overall idea as to Mr Pearce’s working life to date.
Period	Age	Work	
1983	18	Mr Pearce did odd jobs at the stables of Ross McDonald in Mordialloc.	
1984	19	Mr Pearce worked in the kitchen at the Melbourne restaurant, Two Faces. He was enrolled at William Angliss at the same time.	
1985-1986	20-21	Mr Pearce worked full-time as a chef at Mirabelle.	
1987-1990	22-25	Mr Pearce worked as a chef at his mother’s restaurant, Joint Rest. He worked full time as a chef.	
1991-1992	26-27	Mr Pearce worked for his grandparents who owned the Pathfinder Motel in Cotham Road Kew. There was a French Restaurant attached to the Motel and Mr Pearce worked in this restaurant. Mr Pearce worked casually as a chef for 20-25 hours per week.	
1993	28	Mr Pearce worked at Scallywags in Williamstown and Customs House in Williamstown. He worked full-time. He also worked casually at Rosstown Hotel in Carnegie.	
1994-2007	29-42	Mr Pearce did casual work as a chef for VIP agency and Peter Rowlands. He also worked part-time at horse racing premises at Seymour and Pakenham doing odd jobs.	
2008-2010	43-45	Mr Pearce worked as a chef at several places including Castellos in Cheltenham, Zooks in Dandenong Hospital and Café Euro in Bourke Street.	
2011-2013	46-48	Mr Pearce worked full-time as a chef at the Dandenong Hotel for 2 years. He then worked at the Hampton RSL full-time for 8 months. He later worked casually at the bistro Red Pepper in Bentleigh.	
2014-2017	49-52	Mr Pearce worked part-time as a chef at Aero Bar at Moorabbin Airport.	
2018	53	Mr Pearce worked part-time as a chef at an Italian restaurant, Hosteria 200.	
2019-Dec 2020	54-55	Mr Pearce was unemployed in this period.	
Jan 2021-March 2021	55	Mr Pearce worked part-time at the General Store in Edithvale. He worked 9:30-1:30 Monday to Friday.	
April 2021 to Jan 2022	55-56	Mr Pearce was unemployed in this period.	
February 2022 - present	56	Mr Pearce works as a chef for 20 hours per week at Mordi Pizza Pasta in Mordialloc. This work is ongoing.	
57	Mr Pearce said that he stopped work at Mordi Pizza Pasta in 2023 due to having issues with his knees. He is currently unemployed.
58	The following should be noted in addition to Mr Pearce’s employment history detailed in the table above:
(a)	At some point of time in the late 1990s, he worked for at least four to five years (and on one account for ten years) as a horse trainer at Seymour and had a licence issued by Racing Victoria. He had approximately four horses in work. 
(b)	Mr Pearce said that ‘not long after 2017’, he started filing tax returns for the first time. Up until that time, he had never lodged a tax return. The Australian Taxation Office (‘ATO’) was able to assist him with preparing some of his tax returns with information uploaded to the ATO website, however he was informed that he would need the assistance of an accountant to prepare the rest.
(c)	When he informed Rightside that he was unable to file tax returns without the assistance of an accountant, he was put in contact with tax agent, who assisted him with filing returns in 2022 and 2023.
(d)	Mr Pearce’s delayed tax returns and notices of assessment disclose the following income:
Financial year	Taxable income	
2011	$9,610	
2012	$979	
2013	$9,822	
2014	$9,240	
2015	$11,015	
(e)	Information obtained from the DHS reveals that he received unemployment benefit for 639.2 weeks during the period between 9 January 1997 and 8 June 2021 (a cumulative period of 1,273.8 weeks).
(f)	As set out earlier, Mr Pearce did not finish his high school education, nor has he obtained any tertiary qualifications. In his late teens, he was enrolled at the William Angliss Institute to undertake vocational training in hospitality but did not attend the course. 
(g)	Mr Pearce described his employment as ‘empty meaningless work’ and said that he wanted to be educated and wanted to help people.
(h)	Mr Pearce has said to others on multiple occasions that he wished to study law and that he contacted Swinburne University prior to the COVID-19 pandemic in relation to studying law at that institution. He said nothing eventuated from those enquiries as courses were cancelled due to the pandemic.
(i)	Mr Pearce has also, at various times, told others that he wished to be a Jesuit missionary or to be more closely involved with racing horses.
Events following the settlement of Mr Pearce’s claim
59	As mentioned earlier, in February 2017 Mr Pearce settled his claim for $140,000 inclusive of legal costs. Mr Pearce said that after he had received his settlement monies his relationship with Waller Legal ended. However, he continued to monitor developments and recommendations arising from the Royal Commission into Institutional Responses to Child Sexual Abuse (‘Royal Commission’).
60	After learning about legislative changes which would require institutions to nominate a proper defendant to be sued in legal proceedings, Mr Pearce contacted Waller Legal again in 2019 to discuss the possibility of revisiting his case against MSC. He said that he was told by Waller Legal to find another lawyer, and that he then came across Michael Magazanik of Rightside.
61	Mr Pearce said that Mr Magazanik advised that he first needed to apply to the Court to have his previous deed set aside before any further claim could be advanced against MSC. Mr Pearce then, on the advice of Rightside, instituted a proceeding against MSC in February 2021.
62	As part of that proceeding, his application to set aside the settlement agreement was heard by Forbes J in this Court in August 2022. Her Honour’s judgment was delivered in November 2022. Mr Pearce gave evidence, and the transcript of his cross-examination was tendered. 
63	Justice Forbes set aside the previous deed as to general damages and medical expenses only and found that a claim of economic loss was not previously made and was extinguished by the deed. 
64	Mr Pearce described the outcome of the application to set aside the previous deed as a ‘half win’. 
65	Following part of the settlement agreement being set aside, Mr Pearce’s general and special damages claim against MSC was settled in May 2023 for $400,000 plus costs. This figure was in addition to the sum Mr Pearce had originally received as a result of the settlement agreement.
66	In September 2024, Mr Pearce gave evidence about his experiences at Monivae, including with Brother Frith and Brother Mamo in a civil claim commenced in this Court by another former Monivae student against MSC.
The trial
The application to adjourn the trial 
67	On 23 January 2025, five days before the trial of this proceeding was scheduled to commence, Mr Pearce’s lawyers applied to adjourn the trial to obtain further discovery from Waller Legal. 
68	After hearing argument, I dismissed the application and gave brief oral reasons. I promised to deliver more fulsome written reasons — which now follow.
69	The application was supported by two affidavits from Mr Magazanik, Mr Pearce’s lawyer. Mr Magazanik shares the conduct of Mr Pearce’s claim. He swore affidavits on 23 and 28 January 2025. The first affidavit exhibited extracts of the Waller Legal file of Mr Andrew Ure (‘the Ure file’), which in the second affidavit, Mr Magazanik said had been inspected on 13 January 2025 by Rightside. 
70	Mr Ure has been a client of the Rightside since February 2024 and is a former client of Waller Legal which acted for him in a claim for damages (including economic loss) against the Christian Brothers arising out of alleged sexual abuse. Mr Ure’s claim was resolved in September 2015, following an ISC.
71	Mr Simon Ellis, a lawyer acting on behalf of Waller Legal, swore an affidavit in response on 24 January 2025. Waller Legal opposed Mr Pearce’s application.
72	At the commencement of the trial, I heard argument from counsel for both parties as to whether the trial date should be vacated and the trial adjourned.
73	An issue in the trial was advice allegedly given by Waller Legal and a barrister, Mr Timothy Seccull QC, to Mr Pearce about his potential obligation to make DHS repayment. The basis for Mr Pearce’s application was that his lawyers had only recently come into possession of the Ure file. This, it was said, contained information which demonstrated Waller Legal’s ability to seek advice as to potential DHS repayments by its clients who had abuse claims against members of the Catholic clergy. Also, it was argued, it demonstrated Waller Legal’s knowledge of the intricacies of the DHS scheme in respect of potential repayment by its clients. It was said that the contents of the Ure file demonstrated that there was a strong possibility that the assertions made in Waller Legal’s defence and its answers to interrogatories as to ‘(u)ncertainty about the repayment to government agencies from any settlement sum such as social security and Medicare’ were misleading. 
74	So, the central contention for Mr Pearce on the application for further discovery was that it was likely that there were other files of Waller Legal clients which contained similar material to that in the Ure file, and which may well have demonstrated the inaccuracy of Waller Legal’s contentions about its understanding of the DHS repayment provisions and their mechanics.
75	Counsel for Mr Pearce sought to have the trial adjourned so that proper discovery could be obtained ‘in light of the fortuitous revelation of the Ure documents’. It was further said that there was a prospect that Mr Pearce may have also wished to amend his pleadings to plead a claim of misleading or deceptive conduct and may have sought to strike out parts of the defence. 
76	The question of the extent of Waller Legal’s knowledge generally of DHS requirements and practices in relation to the repayment of Commonwealth benefits by its clients is a live issue in the case. And it can be readily accepted (as I did) that there is material in the Ure file relevant to that issue.
77	Counsel for Mr Pearce relied upon what I said in Volunteer Fire Brigades Victoria v CFA (Discovery ruling) in relation to discovery:
However, even with the introduction of the CPA, this is not how discovery works. Discovery has never been limited in such a way; discovery is an integral component in trial preparation. Discovery is not concerned with admissibility: it is part of the fact finding exercise in getting a case to trial. Indeed, often discovery may lead to a train of inquiry not confined to the tender (or putative tender) of a particular document in the course of a trial. Further, it may be that the document, or its contents can be deployed by a party in cross examination rather than part of its case. Much depends upon what happens at trial. One thing is clear: it is not for this Court on an interlocutory application to determine whether a potentially discoverable document will or will not be admissible at trial: that is the function of the trial judge.
As long as the document in the possession of a party goes to a real (and not peripheral) issue to be determined at the trial then, absent any proportionality consideration, it is relevant and ought to be discovered.
78	However, prior to this passage I made the following observations as to the applicable principles which are relevant to the resolution of this application:
There is no ambiguity about the application of the principles of the CPA. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited the High Court said of its NSW analogue:
	The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
	That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge’s individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.
The approach to discovery has changed markedly in the past half-decade or so. The Peruvian Guano test has been consigned to the dustbin. The CPA now requires a court to cut through the layers of interminable argument and nit picking which had traditionally accompanied discovery contests. This case is just such an example of the old approach; three senior and five junior counsel (three engaged by VFBV) to argue about discovery and a day-and-a-half’s argument over documents which can only have been created in in the last six months or so.
….
Finally, where discovery potentially requires extensive trawling through databases and emails, a court must be conscious of the words of the High Court in Armstrong and obligations under the CPA. As I said in Liesfield, the days of the search for the smoking gun are gone. The key is ensuring the discovery exercise is proportionate not only to the relevance of the issues, but also to the likely cost to be incurred bearing in mind that it is the trial that is the focus of the proceeding and not the discovery fight.
79	I emphasised questions of proportionality and cost in resolving discovery fights.
80	Of singular note on this application was the failure by Mr Pearce’s lawyers (I exclude counsel from this observation), in both their submissions and in Mr Magazanik’s affidavits, to disclose their inspection of Waller Legal files other than that of Mr Ure prior to making the adjournment application only days before the trial was due to commence. It transpired, upon my questioning of counsel, that Rightside already had in its possession some 80 files of Waller Legal clients. Of those, 33 were said to relate to the period relevant to Mr Pearce’s claim. These had been examined by members of the firm to discern whether there was anything in those files that would assist in this case in relation to the question of Waller Legal’s knowledge or practice in determining whether DHS repayment by its clients was likely.
81	I was told that, out of those 33 files, two (including Mr Ure’s file) had been identified as disclosing material potentially relevant to this issue. It was also apparent from the material annexed to Mr Ellis’ affidavit that the issue of the production by Waller Legal of information relevant to settlement of other claims with DHS repayment issues had been alive and the subject of correspondence between the lawyers since October 2024.
82	I had initially thought that it may be sensible for Waller Legal to conduct a sample search of its files to see whether there was any similar material to that contained in the Ure file. But, in effect, this is what has occurred by Rightside’s own examination of the files in its possession.
83	In these circumstances, questions of proportionality or, more prosaically, the search for the smoking gun or, to put it more accurately in this case, the hunt for a needle in a haystack, arose.
84	Whilst I accept that there might be something out there in the hundreds of Waller Legal’s files that may have assisted Mr Pearce’s case, the prospect of their identification was clearly low. Importantly, given what is contained in the Ure file, it was difficult to see how discovering another file with relevant contents would have materially advanced Mr Pearce’s case on this point. The relevant parts of the Ure file enabled him to argue that any assertion by Waller Legal or Dr Waller as to the limited extent of their knowledge or uncertainty as to DHS repayment provisions and their mechanics was either ill-founded or had been misrepresented. 
85	The trial of this proceeding had been fixed and refixed on several occasions. Waller Legal and Dr Waller’s reputation, integrity and competence is called into question. Dr Waller personally has had this case hanging over her head for several years.
86	Mr Pearce’s case was ready to start, and the adjournment application was made in the late afternoon of the second last business day before the trial was due to commence.
87	To delay the hearing of the case on such short notice for an indeterminate time on the basis that there should be a search of potentially hundreds of other files with only a small chance of a result which would seem unlikely to improve Mr Pearce’s position in any significant way, would have been wrong. It would not have sat comfortably with the provisions of the Civil Procedure Act 2010, nor with the principles I have referred to. 
88	Counsel for Mr Pearce indicated that they may seek to amend the claim to include a claim under s 18 of the ACL; this was not opposed by counsel for Waller Legal. The suggestion that Mr Pearce may seek to strike out parts of the defence relevant to the DHS repayment issue was devoid of merit — a question of what Mr Pearce was told about DHS repayments by either Mr Seccull or Waller Legal is patently a trial issue.
89	I refused the application and reserved the question of costs.
Evidence at the trial
90	The following witnesses gave evidence at the trial:
(a)	Mr Pearce;
(b)	Sarah Higgins, Mr Pearce’s former wife;
(c)	Kathryn Taylor, Mr Pearce’s mother;
(d)	Charmaine Radke, Mr Pearce’s former wife;
(e)	Dr Matthew Tagkalidis, a consultant psychiatrist;
(f)	Michael Schack, a former student at Monivae;
(g)	Dr Vivian Waller, the principal of Waller Legal; and
(h)	Mark Thompson, a forensic accountant who gave expert evidence
(i)	Dr Andrew Morrison QC, a barrister who gave expert evidence.
91	A vast number of documents (at least by common law standards) were tendered. These included the following:
(a)	the notes (or most of them) from Mr Pearce’s Waller Legal file made by Ms Zelez including those relating to the ISC and the conference with Dr Waller in January 2017;
(b)	correspondence (usually by email) and file notes of conversations between Mr Pearce and Waller Legal;
(c)	correspondence between Waller Legal and MSC’s lawyers, Colin Biggers & Paisley (‘CBP’);
(d)	the brief to counsel and communications with Mr Seccull;
(e)	medical reports relating to Mr Pearce’s claim;
(f)	extracts of files of other claims handled by Waller Legal and in particular those of Mr Ure, Mr Michael Schack and Mr John Negri;
(g)	Mr Pearce’s tax returns and notices of assessment for financial years 2011 to 2015 (and other ATO documents annexed to Mr Thompson’s instructions);
(h)	Brother Mamo’s reasons for sentence in the County Court dated 13 February 2013 and 11 December 2015;
(i)	transcript of the cross-examination of Mr Pearce in the hearing before Forbes J on 16 August 2022 in the setting aside application;
(j)	expert reports of Mr Thompson, the forensic accountant, including Mr Thompson’s communications with, and letters of instruction from, Rightside;
(k)	reports of four consultant psychiatrists Drs Tagkalidis, Neill, Jager and Triggs;
(l)	various interrogatories of Mr Pearce together with Waller Legal’s answers;
(m)	the Truth Justice Healing Council’s Activity Report: Volume 3;
(n)	website page of the Truth, Justice and Healing Council;
(o)	List of Member Congregations of the Catholic Religious Australia as published on the Catholic Religious Australia website;
(p)	Safeguarding Children and Vulnerable Adults (Policy of the Missionaries of the Sacred Heart, Australian Province) dated February 2016;
(q)	second reading speech for the Wrongs Amendment (Organisational Child Abuse) Bill 2016;
(r)	submission in response to the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 from Waller Legal dated 2 February 2018; and
(s)	extracts of various documents subpoenaed from Victoria Police and MSC regarding Brother Mamo, Brother Frith and Monivae.
Developments in the prosecution of civil institutional abuse claims
92	I will now endeavour to set out the legal landscape in which Mr Pearce’s claim against Waller Legal needs to be considered. The period leading up to the time of settlement of the claim was one of considerable flux in terms of case law, legislative changes and the approach of the Catholic Church to claims against its clergy.
93	Throughout the trial there were references by both parties to these developments which I summarise below.
94	In the 2007 decision of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis, the New South Wales Court of Appeal overturned a first instance decision to grant the plaintiff an extension of time under the Limitation Act 1969 (NSW) within which to bring proceedings against the defendants arising out of his sexual abuse by an assistant priest between 1974 and 1979. In upholding the appeal, the Court held that the Catholic Archdiocese of Sydney was an unincorporated association which did not exist as a juridical entity and was therefore unable to be sued in its own name at common law. Whilst persons or groups within the Archdiocese were able to be held liable in tort or contract as principals, the liability of these persons or groups was personal, not representative in nature.
95	In practical terms, Ellis spelt out that in pursuing a claim against a member of the Catholic clergy there were significant, if not at times insurmountable, obstacles in identifying an appropriate defendant other than the alleged offender. There were many diverse organisations or persons running schools, orphanages, parishes and archdioceses which had no corporate being. Identifying a tenable defendant in a claim was particularly difficult. The offender personally was unlikely to have assets. Those corporations with Catholic affiliations that existed usually had a limited function such as holding land and did not directly operate a school or employ clergy. Diocesan priests or assistant priests were probably not employees of the diocese — and in any event it had no corporate entity. Even if an extant relevant organisation or person who had some responsibility for the conduct of the offender could be identified and was potentially liable (this usually required establishing that there was knowledge of the offender’s propensity), then there was a question as to whether there were assets sufficient to meet the claim.
96	Dr Waller said (and I accept) that the decision in Ellis merely identified at that time, what were already apparent to those who practiced in this area, significant jurisprudential and practical problems in prosecuting any claim against a religious institution that was unincorporated — as most if not all were. I have subsequently used the expression ‘Ellis defence’ as an all-encompassing term for the difficulties of suing at common law for abuse suffered as a result of the actions of Catholic clergy. 
97	The Victorian Attorney General, Mr Pakula, described the situation in speaking to the Wrongs Amendment (Organisational Child Abuse) Bill 2016:
	The Family and Community Development Committee tabled its landmark report Betrayal of Trust on 13 November 2013. The report highlighted, among other things, the difficulties that survivors of organisational child abuse face in recovering compensation for the devastating effects of their abuse, and the lack of clarity in the common law about when an organisation might be liable for child abuse perpetrated by its personnel. 
	In particular, the Family and Community Development Committee found that the common law has not developed sufficiently in Australia to recognise the liability of organisations for child abuse perpetrated by organisational representatives. 
	Indeed, despite recent developments in the High Court, the law of vicarious liability and non-delegable duties in relation to organisational child abuse is still an area of great uncertainty and confusion in Australia.
	Historically, Australian courts have been reluctant to find that an organisation can ever be vicariously liable for the deliberate criminal acts of its employees. The courts have not indicated a clear willingness to establish vicarious lability in circumstances outside of a strict employee-employer relationship, and have also been reluctant to include intentional criminal conduct within the scope of non-delegable duties. In addition, within the existing law of negligence, it can be very difficult to make out a duty of care that encompasses the prevention of harm caused by criminal conduct.
	This uncertainty is of no benefit to plaintiffs and defendants alike. Plaintiffs often find it difficult to recover compensation against organisations for organisational child abuse they have suffered. There is also little clarity for defendants about when an organisation might be subject to liability for child abuse perpetrated by its personnel.
	In the Betrayal of Trust report, the Family and Community Development Committee concluded that statutory intervention was necessary, stating that organisations should have ‘a clear legal duty to take appropriate measures to minimise the risk of abuse that arises because of the creation of relationships of trust for which they are responsible’, and that ‘there is a need to recognise the legal obligation of organisations to reasonably ensure the safety of children who come into contact with their members’.
	…
	The bill provides the legislative response that is required. As recommended by Betrayal of Trust, the bill amends the Wrongs Act 1958 to create a duty of care that will allow an organisation to be held liable in negligence for specified contexts of organisational child abuse committed by individuals associated with the organisation, unless the organisation proves that it took reasonable precautions to prevent the abuse.
98	On 22 May 2015, the Truth Justice Healing Council of the Catholic Church (‘the Council’) published the following media release which I reproduce in part.
	The Archbishop of Sydney and one of Australia’s most senior Church Leaders, Anthony Fisher, has said the Ellis defence is no longer a legal tactic used within his Archdiocese.
	Speaking on ABC’s Radio National this morning Archbishop Fisher said both within the Archdiocese of Sydney and more broadly across the Church the position is that in cases of child sex abuse survivors there will always be someone or thing to sue which will be backed by assets and or insurance.
	Archbishop Fisher said he is unaware of any case of child sexual abuse against a church body in which the Ellis defence is being used.
	“We have been very clear that what we do for victims is, as far as possible, don’t put them through a legal process at all and help them settle outside of Court. 
	“If they want their day in Court then we will help them identify who is the person to sue and make sure that is backed by insurance or assets.” 
	Francis Sullivan, CEO of the Truth Justice and Healing Council, said the comments by Archbishop Fisher are the strongest yet coming from a Church leader about the controversial legal defence.
	“This very public endorsement of the new position, developed by the Council and endorsed by Church leaders last year, sends a clear message that it is not business as usual,” Mr Sullivan said. 
	“If a survivor wants to take a claim to Court then at the very least they must have an entity to sue.
	…
	The Church position in relation to the identification of a proper defendant in civil claims calls for: 
	The enactment of legislation in the states and territories imposing a requirement on an unincorporated association which appoints or supervises people working with children to establish or to nominate a body corporate to be the proper defendant to any claims of child sexual abuse brought against the association.
	The identity and corporate structure of the body corporate should be left to the institutions to determine in accordance with their internal structures, provided that the body corporate has sufficient assets or is appropriately insured or indemnified.
99	On 1 July 2015, amendments to the Limitations of Actions Act 1958 removed any limitation defence founded on the assertion that a claim for childhood sexual abuse was statute barred.
100	In November 2015, the Council published the following guidelines, which I reproduce in part:
	When dealing with civil claims related to child sexual abuse, Church authorities should at all times act honestly, fairly and compassionately by: 
(a) 	dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation 
(b) 	assisting the claimant to identify the correct defendant to respond to the legal proceedings
(c) facilitating access to records relating to the claimant, subject to considering the privacy entitlements of third parties and documents that are legally professionally privileged 
(d) 	making an early assessment of: 
(i) 	the Church authority’s prospects of success in defending the proceedings, and 
(ii) 	the Church authority’s potential liability in the claim made against it 
(e) 	acting consistently in the handling of claims and litigation 
(f) 	mindful of the potential for litigation to be a traumatic experience for claimants who have suffered sexual abuse, endeavouring to avoid legal proceedings wherever possible or to confine the scope of the proceedings
(g) 	paying legitimate claims without litigation 
(h)	considering resolving matters without the need for a claimant to take the formal step of filing a statement of claim 
(i) 	providing information about services and supports available to claimants and considering requests from claimants for counselling, pastoral and psychological care assistance, and other kinds of acknowledgement or redress, including meetings with the Church leader, site visits, etc
(j) 	offering, and participating fully and effectively in, alternative dispute resolution processes wherever possible 
(k)	if it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by: 
(i) 	not requiring the claimant to prove a matter which the Church authority knows to be true or has accepted as true 
(ii) 	not contesting liability if the Church authority knows that the dispute is only about the amount of compensation 
(ii) 	monitoring the progress of the litigation and using appropriate methods to resolve the litigation, including alternative dispute resolution, settlement offers and payments into court, and 
(iv) 	ensuring that arrangements are made so that a person participating in any alternative dispute resolution process or settlement negotiations on behalf of the Church authority can enter into a settlement of the claim or legal proceedings in the course of the process or the negotiations 
(l) 	not taking advantage of a claimant who lacks the resources to litigate a legitimate claim 
(m) 	if a statutory limitation period is available as a defence, not relying on that defence unless:
(i) 	the claim involves other defendants that are not Church defendants and there is a risk that the Church authority might bear a disproportionate share of the whole liability to the claimant, or 
(ii) 	the lapse of time has a burdensome effect on the Church authority that is so serious that the Church authority considers that a fair trial would not be possible 
(n) 	if there is a need for expert evidence, co-operating with claimants about choice of expert, to facilitate agreement on the use of a single expert if practicable 
(o) 	not undertaking and pursuing appeals unless the Church authority believes that it has reasonable prospects for success 
(p) 	apologising if the Church authority is aware that it or its representatives or lawyers have acted wrongfully, improperly or in breach of these guidelines.
I will refer to the Council media release and the Council guidelines collectively as ‘the Council public statements’.
101	The Council was ‘established by the two overarching Catholic Church organisations, the Australian Catholic Bishops Conference and Catholic Religious Australia which represent dioceses and congregations across Australia’. MSC is as a ‘member congregation’ of Catholic Religious Australia and authorised the Council to represent it during the Royal Commission process.
102	By its policy titled ‘Safeguarding children and vulnerable adults (Policy of the Missionaries of the Sacred Heart Australian Province)’ dated February 2016, MSC purported to subscribe to the Council guidelines. Relevantly, the policy includes the following:
	Preamble 
	This policy sets out practice and procedure to safeguard from abuse children and vulnerable adults who are in the care of or in contact with the Australian Province of the Missionaries of the Sacred Heart.
	…
	This policy aims to optimise a safe and nurturing culture for all children and vulnerable adults and rests on the Province’s commitment to:
	…
	1.5.Compassionate and just responses to victims of abuse;
	The protocol for Commitment 5 (item 1.5 immediately above) includes the following:
1. 	In the conduct of litigation related to claims of child sexual abuse, the Province will seek to follow a compassionate, just and humble approach that one might expect from a “model litigant”. 
2.	This requires that the Province act honestly and justly by: 
	…
	a. Assisting the claimant to identify the correct defendant to respond to the legal proceedings;
103	Mr Pearce said that he had no knowledge of any press release by the Archbishop of Sydney in November 2015 about abandoning reliance upon the Ellis defence.
104	On 15 December 2017, the Royal Commission delivered its final report to the Governor General.
105	On 1 July 2018, the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 commenced operation. It required ‘non-government organisations’ to nominate an entity that is capable of being sued to act as defendant and to incur liability on behalf of that organisation.
106	On 18 September 2019, s 32 of the Children Legislation Amendment Act 2019 inserted ss 27QA to 27QF into the Limitation of Actions Act 1958. Section 27QA(2) permitted an action to be brought ‘on a previously settled cause of action’ and s 27QE(1) gave the court the power to set aside a previous settlement, if satisfied it was ‘just and reasonable to do so’. When first introduced, this provision applied only in respect to settlements made before 1 July 2015. On 26 April 2021, this was extended to settlements made before 1 July 2018.
The evidence relating to Waller Legal’s handling of Mr Pearce’s claim, and particularly his economic loss claim 
107	The following comes from the contents of the Waller Legal file, the evidence of Mr Pearce and Dr Waller.
108	Before I go to the evidence, I should make the following observations.
109	First, Mr Pearce’s claim was managed by Ms Zelez who was not called as a witness. Her notes are both typewritten and handwritten. They are detailed and the handwritten notes, unbelievably legible.
110	Dr Waller made no notes relevant to Mr Pearce’s claim. She was not present at either the ISC on 29 November 2016 or the conference with Mr Seccull in his chambers on 22 November 2016. However, Dr Waller was a party to the telephone attendance on Mr Pearce with Ms Zelez on 13 January 2017 in which there was a long discussion as to the settlement of Mr Pearce’s claim — and of which there is another lengthy and legible note made by Ms Zelez.
111	Second, in the main, the contents of the file and any inferences to be drawn from them are not in issue. Where there are conflicts with the oral evidence, they are identified.
112	Third, the failure by Waller Legal to call Ms Zelez warrants a Jones v Dunkel inference where appropriate. It was not in issue that Ms Zelez was a highly relevant witness and that her failure to give evidence was unexplained by Waller Legal. She was patently a witness one would have expected Waller Legal to call; or, to put it another way, she was in Waller Legal’s camp.
113	Finally, I should deal with the reliability and credibility of the two protagonists: Mr Pearce and Dr Waller — although their paths only crossed on one occasion.
114	Mr Pearce gave evidence over a period of three days. He was clearly of reasonable intelligence and, not surprisingly, conversant with the way in which litigation in courts operates. His credit was not attacked in any significant way by counsel for Dr Waller. Notwithstanding this, I have the following major reservations as to both his reliability and credibility.
115	First, I considered his evidence, at times, as to his dealings with Waller Legal, to be based upon his current interpretation and view of events in the light of this proceeding rather than based on a proper recollection of what happened at the relevant time. 
116	Next, I cannot reconcile much of his evidence as to his employment history as being either truthful or accurate. Although he was not tackled in the course of this case (which was understandable), his account of his employment history and his receipt of DHS payments is impossible to fathom and goes very much to, at the least, his reliability as a witness.
117	One instance was identified by counsel for Waller Legal in their submissions — a period of time (five or perhaps ten years) when Mr Pearce worked in country Victoria as a horse trainer. In the table of his ‘employment history’ prepared by his lawyers for the forensic accountant (set out at [56] above), it is said that he did casual work as a chef and had ‘odd jobs’ at horse racing premises between 1994 and 2007. In other accounts he dramatically downplayed his working life in the equine industry. For instance, Mr Thompson’s evidence was that he did not know about Mr Pearce having a training licence or training horses.
118	In fact, it was apparent during the trial that he had held a Victoria Racing trainers licence for some time and during this period had usually had four or five horses in work. Trying to determine exactly how long he had engaged in this occupation was as clear as mud. In his evidence, he said that when he was in a relationship with Sarah (which started in 1994) he held a trainers licence and had rented stables at Seymour and trained or pre-trained horses for four or five years. In his instructions to Ms Zelez at the 22 November 2016 conference with Mr Seccull, she recorded that he worked for ten years as a trainer between 1994 and 2005. Whatever the period, he must have leased stables and employed staff (even if only sporadically). The duration of this occupation and any income derived from it was cloaked in mystery. Whether he made any money, or lost money, from this occupation is totally unexplained. Mr Pearce also gave evidence that ‘years and years later’ (which the context suggests means years after his initial employment in the industry) he had worked for Aquanita Racing. 
119	Further, even a guesstimate as to his income from the other jobs (such as a chef) at times during this period of thirteen years is impossible.
120	Then there is Mr Pearce’s failure to submit any tax returns during his working life and to work for cash, other than when working ‘on the books’, until about 2017. Waller Legal’s notes record that Mr Pearce had no pay slips, tax returns or other financial records. In his evidence, he said that no tax records existed in mid 2016. On any view, it would have told substantially against Mr Pearce being accepted as a witness of credit. Ms Zelez correctly described him as ‘a ghost’.
121	This, I regard, as highly significant and going to the heart of his credibility. No psychologist or psychiatrist attributed this conduct to any mental health issue — whether related to the Monivae abuse or otherwise. His counsel did not argue otherwise except to say that this type of conduct occurs from time to time in institutional abuse claims. This is no response. This was clearly a deliberate decision by Mr Pearce to not file tax returns and, at times (never identified with any precision), not to pay tax on his income. The evidence of a person who has lived their life ‘in the black economy’ for over 30 years must be viewed with caution. Notwithstanding his counsel and Dr Morrison’s downplaying of the relevance of this ongoing and flagrant breach of Commonwealth laws, I take a different view — as I expressed during the trial.
122	There is also the stark divergence in Mr Pearce’s evidence in this trial as opposed to that which he gave in the setting aside application in respect of the advice given by Mr Seccull and Ms Zelez in November 2016 relating to his claim for economic loss. On that application, he said that he received no advice whatsoever from Waller Legal or Mr Seccull as to his potential economic loss claim. This is explained in detail later, but it suffices to say that his evidence on that application as to the advice (or more accurately the asserted lack of it) was patently untrue. This topic, as Ms Zelez’s notes reveal, was canvassed with him on multiple occasions by his legal representatives.
123	Accordingly, I treat his evidence particularly cautiously — indeed with considerable scepticism. As will become apparent, there are a few parts of his testimony that I accept as being inherently credible; others I reject as being either improbable, false, self-serving or a mixture of all. Where there is a conflict between Mr Pearce’s evidence and other evidence (be it testimony or documentary) I prefer the contemporaneous documentary evidence.
124	I consider that Dr Waller generally endeavoured to give frank and accurate evidence. However, as will become apparent during the course of these reasons, I have concluded that she is convinced of the propriety and correctness of her position on various issues notwithstanding significant or indeed overwhelming evidence to the contrary. She was, as I perceived it, extraordinarily defensive of any criticism of the firm’s conduct and its reputation. Also, her evidence on at least one critical matter (namely, her discussions with Mr Patrick Monahan, a senior partner at CBP, in respect of the Ellis defence) was vague and unsatisfactory.
125	I was urged by counsel for Mr Pearce to find that Dr Waller knowingly misled the Court in respect of the conduct of Waller Legal’s defence relating to the advice given to Mr Pearce concerning DHS repayments. I will return to this submission when dealing with Dr Waller’s evidence.
126	Now, as to the relevant parts of the evidence, I set out below some extracts of the Waller Legal file (including file notes, emails and other correspondence) and the evidence at trial relevant to some of those extracts. Given the wide-ranging allegations of negligence, these are lengthy but do not comprise every discussion or statement recorded by Ms Zelez or made by Mr Pearce. However they are, I think, sufficient to understand Mr Pearce’s attitude to the litigation as well as the thought processes that underpinned the advice as well as the advice given to him by Waller Legal as to his claim, and particularly his economic loss claim.
127	In 2014 and as a result of his discussions with Broken Rites (an organisation which assists victims of institutional abuse), Mr Pearce contacted Waller Legal as well as Victoria Police. He was advised by Waller Legal in December 2014 to wait until Brother Mamo’s prosecution had concluded.
128	On 17 September 2015, Mr Pearce contacted Waller Legal, and an appointment was made for him to confer with Ms Zelez on 29 October 2015 at Waller Legal’s offices in Collingwood.
129	As mentioned earlier, Ms Zelez was responsible for the conduct of Mr Pearce’s claim under Dr Waller’s general supervision. Ms Zelez had the day-to-day management of Mr Pearce’s claim and occasionally referred it to Dr Waller for advice. Sometimes his case was discussed at weekly team meetings chaired by Dr Waller.
130	On 27 September 2015, Mr Pearce emailed Ms Zelez stating that: ‘I am looking forward to ending all this by xmas if possible’.
131	On 29 October 2015, Mr Pearce met with Ms Zelez at Waller Legal’s offices. Ms Zelez’s notes of the meeting are typewritten and extensive. The notes record his life history, and particularly his experiences at Monivae. The following are selected parts of Ms Zelez’s note, with which Mr Pearce agreed apart from the record of the name of the treating psychologist:
	If you had asked him during the first three months at Monivae — he would have said he wants to be a Jesuit and get a law degree.
	What did they take from him — desire to become a Jesuit and a lawyer.
	It was in his heart to become a Jesuit. He may not have made it through the seminary.
	Also he was a year ahead of everyone else, his grades were great.
	When he told everyone at career day — that he wanted to pursue the law — they all thought that was suitable.
	No drugs.
	Beer occasionally.
	He has always desired to do missionary work.
	With the abuse — it was hard to embrace Catholism [sic] and to so [sic] missionary work.
	Each occasion that occurred — his heart grew less and less focused on becoming a Jesuit
	Law degree – That option/opportunity was taken away from him – because he became dysfunctional, lack of ability to concentrate
	School work became too easy to him. In the end didn’t even try. 
	He gave up – remembers when his grades started slipping. 
	Form 1 First term – straight A’s. 
	18 months later – got the lowest grades possible. 
	No school records. 
	Mum has looked everywhere. 
	We’ll see whether the MSC give us anything. 
	Report comments were very positive first six months. The next months – were about his behavior [sic],
	Wanted to be a jockey – when he left school. 
	Form 4 – he was only 14 or so. 
	He was living in Richmond – on weekends and holidays – got a job with Bart Cummings. Discussed with Mr Cummings to leave school and become a jockey. He encouraged that. He was allowed to leave school.
	Bart Cummings got him a job in the country for six months.
	Then he just started looking after horses.
	Stable life suited him – loved the horses.
	Got his training licence.
	Trained some winners – had some luck. 
	Also worked as a chef.
	With the Flemington set-up — took on more progressed jockeys. 
	Got disillusioned in the country – got a job at Caulfield. Worked for a guy called Jeff Murphy – trained a horse that won the Caulfield Cup. 
	Then he walked out of there one day. 
Walked into a restaurant in Toorak Road South Yarra. 
Got a job there and became a chef. 
	Has been chef-ing since the age of 16 to now.
	…
	Apart from Janice – no other counselling or psychology.
	Since making the statement in October 2014 — his life/momentum has consumed his every waking hour. 
	Couldn’t sleep last night. 
	Extremely tiring. Feels like he is running out of steam.
	Before Bernard at Broken Rights – hadn’t told anyone. Kept it hidden for all those years.
	Wasn’t until the eldest boy turned 11 (kids with Sarah). It was almost a revelation. Someone mentioned boarding school him — and all of a sudden he was seeing everything. 
Suppressed it for so long. Then remembered it all.
Told GP briefly. Got a mental health care plan from him. A medical clinic in Mentone.
Never antidepressants or anything like that.
…
	Doesn’t stay at jobs very long – most chefs are like that anyway.
	His family – keep him extremely busy – four kids under 12. Weekends are spent with them.
	Physical health problems – contracted hepatitis C (never taken drugs) – contracted it in 1990. Basically he got very sick with it. Went on a program with interferon. Put him in remission. At that time – they gave him ten years to live. But he’s still here. Gets liver function tests – all good.
	…
	Biggest impact – 2 main things – still a desire to do missionary work. When he sees that sort of thing – he wants to be involved. Hard with young children doing much else socially. Basically just feels that he could have done better had he stayed at school. He was certainly allegeable [sic] to achieve more than he did. If his education wasn’t impeded by what he did – he would have had a better quality of life.
	…
	Being a chef – no superannuation – a lot of places pay cash. Wants the money for his retirement. Wants superannuation for the kids. Conscious of his mortality. Wants to help them.
	Discussing ADR process. Discussed Ellis. 
	Discussed issues with ongoing criminal proceedings.
132	Mr Pearce, in evidence, said of the reference to Ellis that he understood, from his discussion with Ms Zelez, that the Catholic Church ‘was a non-entity and therefore could not be sued’ — and that this left a negative impression upon him. As he understood it, it would be difficult to proceed with a litigated claim. In cross-examination, he said that he understood that the Alternative Dispute Resolution (‘ADR’) process was promoted because of ‘the existence of Ellis’ and that Waller Legal was very experienced in this area.
133	On 30 October 2015, Ms Zelez appears to have recorded the contents of a text message from Mr Pearce which included the following:
	I thought and prayed about what advice you gave me in regards to how much I just wanted and how much I just wanted to let you know I was really hoping it would come on sooner. I know there are still statements to complete and on the amount I would not be pleased with 120k to 140k. Im [sic] hoping that when we are ready to settle I would be in a stronger position regards Gary.
134	Ms Zelez replied:
	Unfortunately, it is somewhat too early to speculate about quantum, but we note your comments. Please await our letter. Kind regards, Elisa of Waller Legal.
135	Mr Pearce in cross-examination explained that he was not certain where he obtained that expectation from but that the settlement number was displeasing.
136	On 5 November 2015, Ms Zelez wrote to Mr Pearce. In part, the letter read:
	To be successful we must prove that the Missionaries of the Sacred Heart owed you a duty of care, that they breached that duty and this has caused you an injury.
	It is clear that the Missionaries of the Sacred Heart owed you a duty of care because you were a student at a Missionaries of the Sacred Heart run school.
	Proving breach is assisted by other cases relating to Monivae and relevant criminal proceedings. However, we will also ask the Missionaries of the Sacred Heart to provide any records held by them that indicate that they, either individually or as an organisation, were on notice of abuse or inappropriate conduct by Mamo and/or Frith during their appointments as Brothers. Further, we will ask the Missionaries of the Sacred Heart to provide information about other complaints/claims for compensation that they are aware of regarding Mamo and Frith.
	Establishing that the breach has caused you an injury is a matter for medical material because the type of injury in these sorts of claims is psychological.
	There are legal technicalities that make successfully suing Catholic defendants in court difficult. The main difficulty is commonly referred to as the “Ellis defence”. In basic terms, it is that Australian law does not recognise the Catholic Church as a legal entity that can be sued in its own right for child sexual abuse. As such, a case against the Church (or a sect within it like the Missionaries of the Sacred Heart) is vulnerable to being dismissed by a court on the basis of a legal technical defence. 
	The Limitation of Actions Amendment (Criminal Child Abuse) Act 2015 commenced on 1 July 2015. This Act has removed the age-linked time restrictions for instigating cases like yours in court. This is a positive development for your case, and for other cases similar to yours. However I note that other legal technical difficulties, like the Ellis Defence, remain.
Ms Zelez went on to advise Mr Pearce as to the use of out-of-court settlement discussions with MSC:
	The process then normally culminates in a solicitors settlement conference where compensation will be negotiated.
	We note that this process is not quick and can take between 12 and 18 months.
She then said that it was premature to discuss the likely quantum of compensation, and that was something ‘best left to the barrister who we brief to represent you at any settlement meeting’. 
Ms Zelez then confirmed that Waller Legal would act on a ‘No win No charge basis’ and that a fee agreement would be sent for Mr Pearce’s review and completion once their agreement had been updated. It requested Mr Pearce to complete various tasks and under the heading ‘Lawyers working on your file’, the following was recorded:
	Dr Waller is a lawyer of over 20 years’ experience and is the principal solicitor of Waller Legal. 
	Dr Waller will be assisted with work on your file by junior solicitor, Elisa Zelez who has worked at Waller Legal on cases against different Catholic Defendants since January 2013.
The letter went on to identify Ms Zelez as the contact person and has Dr Waller’s name as the author.
137	Mr Pearce said that this letter confirmed his belief as to the challenges in successfully prosecuting his case. He was given no advice as to what his claim might be worth.
138	In cross-examination, Mr Pearce was adamant that ‘from the very beginning Ellis was mentioned at every – at every turn, Ellis was reinforced. There were no prospects of litigating’. Later he agreed that it may be that the prospects of bringing a claim were ‘[d]ifficult, possible, impossible, difficult. At certain times different – different. But it – it was still always the same. It was tough’.
139	On 9 November 2015, Mr Pearce wrote by email to Ms Zelez:
	Dear team Waller so after sleeping on it over the weekend the thought of having the case on hold leaves me feeling very anxious, it has been a long year thus far, and being faced with another year or more before anything is settled would not be good for me. … I know the sano taskforce is very busy and she might not get around to arresting him for a year. I thought with Mamo after the guilty plea that this case could move quickly to settlement. If my best interest are in play this is what i want to happen. I am aware that your firm is very much sought after and again i state i am grateful to have you but i really need Mamo to be settled first before we move on to frith which as Karen says is very complex because of the extent of the abuse the amount of the abuse and also because he has never been charged before and it is possible and very likely that he may defend the charges, this indicates a long process, and one that i am prepared for so long as i have vindication and compensation on the first one. 
140	Mr Pearce emailed Ms Zelez again on 19 November 2015, writing of his need to be ‘patient for justice’ and that he ‘can and will if we can get first one settled’.
141	On 9 December 2015, Ms Zelez, with Mr Pearce, attended the Brother Mamo plea hearing scheduled for that date.
142	On 18 December 2015, Mr Pearce and Ms Zelez exchanged emails. In Ms Zelez’s email, she confirmed that Mr Pearce wished to progress his case instead of awaiting police investigations into Brother Frith. To which Mr Pearce responded:
	When you do approach MSC i feel it is very relevant that you insist this is settled quickly because of medical conditions with my liver and my age. I can verify this with my GP who i have given you authority to approach.Elisa i can’t tell you how pleased i am that the civil wheels are turning.
143	In his evidence, Mr Pearce said that he understood that the case was against ‘the Missionaries of the Sacred Heart, Frith and Mamo’.
144	Ms Zelez also recorded in her notes ‘“final position” is 150 + costs’. When asked about this part of the note and whether it had any significance or ‘triggered anything in [his] mind’, Mr Pearce replied ‘no’.
145	Also on 18 December 2015, Ms Zelez contacted solicitors Carroll & O’Dea Lawyers and CBP to request identification of the appropriate defendants to be named as defendants on behalf of MSC and records of MSC being on notice about Brother Frith or Brother Mamo. On 22 December 2015, CBP advised Waller Legal that it had instructions from MSC’s insurer, Catholic Church Insurance (‘CCI’), to represent ‘the defendant’, and Waller Legal then engaged with CBP in relation to Mr Pearce’s claim. 
146	Over the next six months, Mr Pearce was in regular contact with Ms Zelez and other Waller Legal staff in relation to the preparation of his claim: his counselling arrangements, obtaining his Medicare claims history, his attendance at medico-legal appointments, the provision of school reports, updates on his health and the criminal proceedings involving Brother Mamo and Brother Frith, his research into previous Monivae alumni who had gone on to become lawyers, and enquiries regarding the progress of, and his desire to settle, his claim against MSC.  
147	In an email on 10 February 2016, Mr Pearce wrote:
	And I want you to make them pay and pay huge. I know you can and the material you now have gives you the ammo not just to get a settlement but to go them hard and large in monetary terms. So awful on there [sic] behalf. If only one person took the time and had the skill to explore my pain. Shameful. Show no mercy with them.  
On 4 March 2016:
	It has been a arduous 18 months and I am desperate to place all this behind me and move on. I just cant, although i have tried so very hard to. It is putting stress on now everyone around me. 
On 30 May 2016:
	How long after will it take to meet with MSC?
	It just seems to be taking a very long time to achieve something that is rather straight forward.
148	On 21 April 2016, Waller Legal arranged for Mr Pearce to be examined by consultant psychiatrist, Dr Wendy Triggs.
149	On 7 June 2016, Mr Pearce emailed Ms Zelez. Part of the email read as follows:
	I am hoping Laura was contacting me to inform me that you were in fact busy and to allocate me another time. 
	I am desiring clear direction so as to quell my obsession with completing this action.
	The penalty Mamo received for his abuse on me only had a short term sense of satisfaction.And the pursuit that you are undertaking i am hoping i find some sort of justice that way.
150	In cross-examination, Mr Pearce said that at this time his mental health was not good and that, because of that, he was just wanting to complete the case.
151	On 8 June 2016, Ms Zelez had a lengthy telephone conversation (38 minutes) with Mr Pearce during which the possibility of bringing an economic loss claim was discussed. As best they can be reproduced, the relevant parts of her notes record:

152	Mr Pearce said in evidence that the conversation with Ms Zelez left him feeling ‘a little anxious’. He said that he remembered the discussion about loss of earnings or economic loss and that it was ‘difficult and um, made worse in my case because of lack of tax returns’. On his account, Ms Zelez told him that it was difficult but not impossible to bring a claim for economic loss. He said that he did not have an understanding of this and did not agree with it. 
153	As to the reference to crystal ball gazing in the notes, Mr Pearce recalled this being said and that, as he understood it, it meant that she was referring to his economic loss attributed to his loss of education and hopes for a better career. He also recalled being told by Ms Zelez of the ability to make a formal or informal economic loss claim. He said that he understood this to mean that economic loss could be claimed informally and attached ‘to other components of the claim, general damages’. He said that he was not asked at this time for a detailed work history, contact details for former employers or family members.
154	In cross-examination, he said that Ms Zelez had explained to him that the lack of ‘tax returns, the working for cash was a — was a problem’. He said that Ms Zelez had told him the ‘afflictions to his education and work life’ could be addressed under general damages, which she described as ‘informal LOE’. He said that he had reminded them (a reference to Waller Legal) — ‘always reminded them’ — of losing his secondary school education and his desire to go to university.
155	Later that day, he emailed Ms Zelez:
	Hi Elisa i wanted to email you as i have had all day to ponder and reflect on the content of our conversation today.
	To understand my grievances with Monivae and how it’s [sic] abuse at the hands of the brothers you would need to know me better. 
	Today was about you talking and that is brilliant, i like the way you think things through and present them. 
	This is your field of expertise and i am grateful to have you, i know this. 
	But in regards to the possible hurdles my brief has towards settlement i can only say ...... who are they to say what might have or not happened if the abuse had not been given. 
	I am from a very good family that are rich and successful i chose Monivae because i desired to be first a Jesuit and to also attain a degree in law. That is the sole reason i chose the school. 
	I was very forward for my age and new [sic] what i wanted from life. At the time i went there i was earning 3 times more than my father by being so driven doing commercials shows in the theatre etc, but it was not fulfilling me i had a desire for more and that is why i chose Monivae as the place was full of Jesuit Missionary’s [sic] and had a rich history in students going on and getting degree’s [sic] in law. 
	My life has been say so i have made the best of it but it could have been better and would have if not for the abuse. 
	On top of that is the right and need to have a secure healthy marriage, i was robbed again. 
	It may sound a bit contradicting but i always wanted to marry and have children which i did twice and have 7 children. I would not have remained a Jesuit for ever just enough time to serve in a missionary capacity and attain my degree in law. 
	The question of quantum amount we have not discussed, although you did at one time indicate an amount in the mid 100’s but that was not factoring in Frith as you had not known anything on that and had not received statements. 
	I want to put it out there that i have given it a lot of thought from all angles and i sit on the prospect of 300k a figure I would be satisfied with, to serve as an apology and one that would see me share among the 7 children that i have been blessed with. 
	They all have missed out on things i could have done for them if i was given a chance at achieving my goals. 
	I know you and your firm want to get the possible for me, why else would you be doing what you do. 
	I have faith in you. 
	Kind Regards Gary Mark Pearce.
156	In his evidence, Mr Pearce said he sent this email because he felt ‘there were some areas that I need to highlight’. The reference to ‘300k’, was to a figure that he ‘plucked…out of the sky’. He also said that he had not been given any guidance by Waller Legal as to what his claim was worth.
157	Mr Pearce then said that he understood what economic loss was:
	The phrase “economic loss” was a um – a way of righting the wrong that had been brought about by loss of education, loss of opportunity, university, degrees. It was a way of compensating for all of that, for the trauma, for the life that I had to lead that I didn’t ask for. That wasn’t the path I was on. Economic loss was a way of erasing all of that in some way that would help with everything that you had to endure in life. The children had missed out on a lot. It was a way of righting the wrong. I had to go through um a lot of stuff. So to the point where working on the streets, having sex with men, this was some way of saying that compensating you for that. It was a very important component, I thought. But if you were to apologise and compensate, that was a - a very significant way of doing it.
158	On 7 July 2016, Ms Zelez sent an email to Mr Pearce which included the following 
	As you are aware, you have instructed this office to progress your claim via the agreed Alternative Dispute Resolution (ADR) process with the lawyers who act for the MSC with the aim to resolve your case out of court without the necessity of recourse to litigation. 
	At this stage, we do not yet have a date for settlement conference in your matter. However, we are still making good progress in the ADR process. 
	…
	As planned, I touched base with Dr Waller about your matter. Dr Waller, like I, noted the difficulty in that your financial records are unlikely to show your actual earnings given that you were mostly paid in cash throughout your time working as a chef. Nonetheless, we discussed that we would highlight the impact upon your working life to the defendant lawyers and see whether they request financial records.
	We have provided the report of Dr Triggs to the defendant lawyers as well as information, based on your instructions, about the impact of the abuse on your opportunities in education and work.
159	When asked by me as to the reference to ‘the difficulty’ with the financial records and his payments in cash, he confirmed that he had never filed a tax return during his employment and that the only times upon which tax would be paid by him was when he was being paid ‘on the books’ by his employer.
160	On 8 July 2016, Mr Pearce responded to the email in the following terms:
	I understand what you are saying but as you know i was really hoping i could place all this behind me.
	I was seeing July 1st as the end.
	So in light of what you are saying and the time factor if you could please give me a revised time period i can work with that. I am just needing some light at the end of the tunnel it is how i have dealt and will deal with this delicate situation.
161	On the same day, Mr Pearce again wrote to Ms Zelez in the following terms:
	Just to display the impact all this is having on my life i now find myself homeless.
	My partner and i have split after 8 years.
	She sights [sic] the ups and downs and the emotions attached to this case. 
	My talking and waiting for settlement she can bear no more.
	I am not telling you this for any other reason than i need to stand out from among the masses of cases you must have.
	I insist on being heard and I hope you do not interpret it as annoying.
162	On 18 July 2016, Ms Zelez wrote to Mr Pearce advising him:
	[W]e are making good progress in the ADR process. 
	… 
	We will do our best to progress your matter to a settlement conference in the coming months. But note that because we are progressing your case via ADR, there are no exacting timeframes. Further, despite its description, matters do not always settle at the first settlement conference. 
	… 
	We understand that you have recently separated from your partner which you attribute in part to your emotional “ups and downs” connected with this claim.
163	Also on 18 July 2016, Waller Legal wrote to CBP: 
	While we are not instructed to prepare a formal loss of earnings component for the purpose of ADR, Gary feels that his education was significantly affected by the abuse and consequently impacted upon in his career opportunities. Further, in recent years and particularly during the criminal proceedings, Gary instructs that his work capacity has diminished in part due to his psychological difficulties.
	On page 12 of her report, you will see that Dr Triggs offers comment on the impact of the abuse upon Gary’s education and work.
This email also sought to follow up on Waller Legal’s ‘outstanding requests’ for the identification of appropriate defendants and records of MSC being on notice about Brother Frith or Brother Mamo.
164	When Mr Pearce was, in the course of his evidence, shown this email, he said that he never told Waller Legal not to make a formal loss of earnings claim and further that he was not aware that the firm had written to the solicitors for MSC asserting that they were not instructed to prepare a formal loss of earnings component for the purpose of ADR. 
165	On 24 July 2016, Mr Pearce emailed Ms Zelez. In part, the email read as follows:
	But you see one very valid point that seems to be getting over looked [sic] is the serious state my health is.
	I am in the middle of treatment on my liver which could fail at any time.
	I have pointed this out on a couple of occasions.
	I have to be frank  i have extensive scarring on the liver and am not in good shape.
	This matter i would like settled  as soon it is humanly possible so as  to still be here to accept there [sic] apology.
166	On 4 August 2016, Ms Zelez wrote to Mr Pearce noting the contents of his recent email and his instructions to settle the case ‘as soon as humanly possible’ and stating:
	In order to best prepare your case, our preferred approach would be to continue to progress your case via the ADR process as normal. As stated in our previous letter, we are making good progress and doing our best to advance your matter to a settlement conference in the coming months. 
	However, if you instruct us to, then we will obtain a letter from your GP Dr O’Brien which specifically comments on your ill physical health and prognosis. 
	If you instruct us to, we can then provide this letter to the defendants to see whether matters can be progressed expeditiously. Usually Defendants will agree to expedite matters in circumstances where there is medical evidence (in the form of the report) demonstrating a terminal or life threatening illness.
167	On 4 August 2016, Mr Pearce emailed the following response:
	so if i am understanding your suggestion correctly you are requiring a death sentence letter from my GP?
	I am appalled.
	Sure if that is what it will take to end this awful nightmare i am made to re live [sic] every single day why seemingly there is nothing going on.
	Mamo was sentenced Nov last year and many have reached there [sic] settlement that i have remained friends with.
But I chose to come to the big guns in this arena to get max compensation in quick time. 
I have formed the opinion that the firm is so busy that my file must just get shuffled along. 
I can not see why this could possibly take so long.
The crimes have been accepted they did it and they are responsible. 
I am tired of all this. 
I want to get on with life that does not involve courts/Waller legal [sic], i am done with it all. 
So i will see my GP and ask him to write such a notice if that is what is needed to end all this.
168	On 8 September 2016, CBP wrote to Ms Zelez requesting, among other things, Mr Pearce’s Centrelink records.
169	Also on 8 September 2016, there was a telephone conversation between Mr Pearce and Ms Zelez. Ms Zelez’s file note records that he said that he was: ‘anxious for it all to be resolved’.
170	On 5 October 2016, Ms Zelez sent by email to Mr Pearce a fee agreement which included an uplift fee of 25% in part for:
i.	the extensive, complex and specialised knowledge and skill required to conduct the matter;
ii.	the nature and circumstances of the case;
iii.	the amount and complexity of facts, evidence and documents to be considered…
In the fee agreement, the costs estimate for total legal costs were estimated to be: to mediation — $40,000 to $60,000; to hearing — $150,00 to $200,000. The uplift fees were estimated to be for mediation — $6,000 to $10,000; for hearing — $22,500 to $30,000. The estimate was stated to be based ‘on work of a similar nature completed for other clients’.
171	The letter accompanying the fee agreement requested that Mr Pearce sign it and return it. No signed version of the agreement was produced by either party at the trial, however there is an email of 20 October 2016 from Mr Pearce which indicates that he had returned the fee agreement to Waller Legal.
172	On 6 October 2016, Mr Pearce wrote an email to Ms Zelez which included the following:
	Hi Elisa....completed shrink session.
	It was rough.
	Done my very best to squeeze all relevant details in.
	Hoping to have a date very soon.
	I am so looking forward to this being over.
	Word is no movement on Frith this year.
173	On 10 October 2016, Ms Zelez, by email, advised Mr Pearce of the date of the ISC and that she had engaged Mr Seccull to appear on Mr Pearce’s behalf.
174	As the result of a freedom of information search, in October 2016, Ms Zelez received details from DHS concerning Mr Pearce’s receipt of Commonwealth benefits.
175	On 20 October 2016, a file note indicates that Ms Zelez reviewed the information obtained from DHS which demonstrated that Mr Pearce had received numerous payments of different forms of Commonwealth benefits at various times between 1991 and 2016.
176	On 2 November 2016, Ms Zelez wrote to a DHS officer asking for assistance as to the type of payments that Mr Pearce had received. 
177	On 18 November 2016, Ms Zelez emailed a letter to Mr Pearce again advising him that she had briefed Mr Seccull of counsel to represent him at the ISC. Part of the letter read as follows:
	The main aim of a conference is to negotiate the defendants to their “final financial position” on the day, and then for you to assess, with our advice, whether or not that is an appropriate settlement in your case.
	There will be no need, and you will not be pressured, to make any final decisions on the day your conference unless you wish to.
178	Mr Pearce said that up until this time he had been given no advice as to what his claim was worth.
179	On 21 November 2016, Ms Zelez sent an email to CBP, seeking a response to the requests for records of MSC being on notice about Brother Frith or Brother Mamo, and for the identification of appropriate defendants to be named in any prospective writ. Later that day, Mr Daniel Creasey, the CBP partner handling Mr Pearce’s claim, replied to Ms Zelez’s query about identification of an appropriate defendant asking whether it was ‘really necessary at this time?’ and whether it could ‘be provided at the settlement conference’ adding that he ‘assume[d] proceedings will not be issued until after a settlement conference’.
180	Also on 21 November 2016, Ms Zelez sent a brief and accompanying memorandum to Mr Seccull. In it, Mr Seccull was advised:
	We are not instructed to formally claim loss of earnings.
	Counsel may consider putting a nominal figure on loss of opportunity in education and work, in consideration of Victorian Stevedoring v Farlow (1963) and/or Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
It also stated: 
	We have enclosed a copy of the confidential Waller Legal miscellaneous Catholic previous settlement chart for your reference. 
The chart listed 22 past settlements that Waller Legal had reached for clients who had been sexually abused in Catholic Church settings. The amounts of the settlements ranged between $60,000 to $167,500 inclusive of costs. Nine of those 22 past settlements were against MSC where Brother Mamo was the abuser. The settlement amounts in respect of abuse perpetrated by Brother Mamo ranged from $75,000 to $155,000. A column in the chart indicated whether or not Waller Legal had claimed economic loss. In eight claims, economic loss was ‘not formally’ claimed and in the remainder (14 cases) it was not claimed. 
In the memorandum under the sub-heading ‘MSC Brother Edward Mamo’ within the section headed ‘OFFENDER AND DEFENDANT LIABILITY INFORMATION’, Ms Zelez stated:
	Additionally, in our most recently settled MSC (non-CCl) matter Carroll & O’Dea Lawyers provided an up to date complaint history. This is enclosed in the brief.
	This complaint history lists 15 complaints relating to Mamo arising from Monivae College.
	Mamo’s modus operandi has been to abuse boys under the guise of discipline. Most allegations against Mamo involve him leading victims down to the isolated laundry room for “discipline”.
	We note that two of our former clients [redacted] instruct that they reported Mamo to Frith in 1980 or 1981 at Monivae. 
	[Redacted] instructs that Frith told him at the time that he had reported the matter to the Rector of the College Denis Uhr, and that the matter was being addressed.
	[Redacted] instructs that Mamo was transferred from Monivae sometime later.
	A number of former clients have told us that they suspect that the MSC leadership were on notice of abuse by Mamo when he was at Chevalier College, and that this is why he was transferred to Monivae in 1974.
	We note that the complaint history reflects multiple complaints from Chevalier College.
	In past claims, Carroll & O'Dea Lawyers have previously [sic] us with a confidential report on Mamo dated March/April 1985. This is enclosed in the brief.
	This confidential report, amongst other comments, states that “at the end of my time as Provincial in Australia, Mamo had to be moved from a college run by the Province. The reason for this was not conflicts he was having with staff members, but his conduct with the boys.” And “but of action and words that definitely gave scandal to some of the boys”.
	…
	In December 2012, Mamo plead guilty to a number of indecent assault charges and was sentenced in February 2013 to two years and three months imprisonment.
	As mentioned above, last year Mamo was charged and convicted of further sexual offence charges relating to his time at Monivae.
Also in the same section, under the sub-heading ‘Liability’, Ms Zelez listed factors relevant to negligence and vicarious liability, as relevant to both Brother Frith and Brother Mamo:
	At this stage, in regard to Mamo, relevant factors include that:
•	At the time of the abuse of Gary, Mamo was an MSC Brother and was appointed to Monivae as boarding house master / driver (and perhaps other roles) by the MSC and was under their control and authority;
•	The MSC owed Gary a duty of care to ensure that he was not subject to any injury and/or abuse consequent on his contact with Mamo;
•	Mamo was in a position of power and authority over Gary by virtue of his roles;
•	The “disciplining” of students by Mamo in the laundry room was condoned by other staff at Monivae including Brother Xavier and the Rector;
•	The abuse by Mamo was common knowledge amongst the students;
•	Mamo’s duties seemed to relate to the students out of class and after class activities including transport, recreation, boarding, sports and necessary discipline of the students during those times;
•	These out of class and after class duties allowed him to achieve greater intimacy with the boys than a regular class teacher;
•	The abuse of Gary occurred in the course of Mamo carrying out his duties and functions;
•	Mamo used his position, and his condoned use of discipline, as a way of obtaining compliance from Gary;
•	His roles and the approval of his mode of discipline gave Mamo the occasion to abuse boys;
•	The abuse of Gary by Mamo occurred when the MSC knew of Mamo’s propensity to abuse students; or
•	The abuse of Gary by Mamo occurred when the MSC ought to have known of Mamo’s propensity to abuse or behave inappropriately with students;
•	There was a lack of supervision and intervention by the MSC leadership to investigate Mamo taking students into the laundry room for “discipline”;
•	Gary has suffered an injury (as outlined in his treating doctor and the medico-legal reports) as a consequence of the abuse he endured by Mamo.
As to Frith, the relevant factors were said to be as follows:
•	At the time of the abuse of Gary, Frith was an MSC Brother and was appointed to Monivae by the MSC and was under their control and authority;
•	The MSC owed Gary a duty of care to ensure that he was not subject to any injury and/or abuse consequent on his contact with Frith;
•	Frith was in a position of power and authority over Gary by virtue of his roles;
•	Frith’s duties included spiritual/religious leader and he was in charge of the care of students when ill/injured in the infirmary;
•	His spiritual and caring roles bought with them duties that allowed Frith to achieve greater intimacy with the boys than a regular class teacher;
•	The abuse of Gary occurred in the course of Frith carrying out his duties and functions;
•	Frith’s roles gave him the occasion to abuse boys;
•	Gary has suffered an injury (as outlined in his treating doctor and the medico-legal reports) as a consequence of the abuse he endured by Frith.
The memorandum instructed counsel on the issue of identifying appropriate defendants as follows:
In Gary’s matter, we have not yet received a response regarding the identification of the appropriately indemnified defendant. However, we expect to receive this information by the settlement conference next week and will update Counsel when able. 
In our most recently settled MSC (non-CCl) matter we were advised by Carroll & O’Dea Lawyers that the identity of the entities to be named as defendants were: 
•	Trustees of the MSC; and 
•	The Corporation of the Society of the MSC.
181	Mr Pearce said that he was not told anything about the identification of an appropriate defendant nor that it was anticipated that MSC would nominate such a defendant at the ISC.
182	Mr Pearce then met with Mr Seccull and Ms Zelez at Mr Seccull’s chambers on 22 November 2016. Again, Ms Zelez’s notes are comprehensive. They record a detailed life history, generally consistent with that given previously by Mr Pearce to Ms Zelez, and in Mr Pearce’s evidence in the trial. Of some significance was the following:
	– Back involved in horses –got licence & started training. 
	   From 1994–1995 
	   Approx 10 years  through until approx 2004/05.
	   Gave up – inconsistent income.
	
	– Subsidised by working w Costellos.
	        → Costellos – Hotels.
Then:
	– On the books or not really? 
	     → Gary works in w employer.
	     → yes, mostly cash.
	
	– Tim is explaining difficulty v L.O.E // cash.
	
	– more trouble than its worth.
	– centrelink & DSS payments – can cause issues.
	– never rec’d payments from centrelink while working.
	
	– TS explaining what we’re entitled to claim.

	   ⸝ P&S
	   – medicals
	   ⸜ pecuniary loss/wage loss
	
	– if we claim/try to } centrelink deems ½ wage loss.
	            They want to be repaid potentially.
	            If currently on benefits – could 
	            affect future payments.
	
	– could be more trouble than its worth in this case.
	
	– all understand.
	
	– Gary does feel like he could have achieved more. 
	
	   He feels like he could have done more had he 
   finished school.
              ˅
	        we’ll claim this as part of our general damages.
	
	Last work was Oct 2014.
	       → Italian restaurant in Highett. – Jack’s Bar.
	       → only temporary. – Head chef.

	[indecipherable] 100+ period.    (2012 → 2014).
	                             → leased kitchen and operated business.
	                             →– in Dandenong. – not viable
	
	– Hampton RSL
	         → leased kitchen & had a Bistro.
	         → not viable.
	
	– October 2014 } stopped working.
	
	– Not looking for work.
	
	– on sickness benefits.

>

– Oct 14.
	        → conscious decision re Monivae.	        couldn’t 
	                                                                         concentrate
	        → through inactivity, hep C symptoms                                  @ work .
             worsened.

	        → Centrelink gave him sickness benefits. 
	
	        → hep C drug. } 95% cure rate. 
	
	        → latest test – Hep C not detectable.
	
	        → Still has scarring on the liver. Not reversible. 
	
	[indecipherable] He thinks he’ll be looking to [indecipherable] work.
	
	 – this is good timing. Hoping to get this behind him. 
	– last 2 years –  in Hep C symptoms has really 
	     what has affected condition/employment.
	
	…
	
	 – GP – Dr O’Brien. (Mentone Clinic).
	
	          – Nov 14 – started seeing him.
	          – referred Gary to psychologist – Janice Whetton. .
	                      
	                     mental health care plan.
	
	anti Ds prescribed by Dr O’Brien. 
	2 diff names – trialled but no help.
	
	no other medical practitioners.
	
	not seeing anyone else atm.
	
	one day just thought – I don’t want to go anymore. Found keeping it to himself helpful.
	
	- last saw Janice in late April / early May. ║ Last appt 
relating to this.

- Proceed w a claim for specials          Through this discuss
                                           +                effect on educ + vocation.
  generals
   (P&S). 
183	The balance of the note, I have inferred, probably recounts advice given by Mr Seccull. It reads as follows:
	– Best advice – go in w low expectations.
	
	Generally they’re OK – but we’ll see. 
	
	– we’ll give frank advice. 
	
	– fair + appropriate //
	
	– Always your case – we’re respectful of that.
	
	– EZ walked 
	    Gary out → Gary said he felt v. comfortable w Tim.
	                          Is v. happy to have him representing him.
184	In his evidence, Mr Pearce said as follows of the advice given to him by Mr Seccull:
	Mr Seccull spoke about the difficulties of the claiming loss of earnings, economic loss. … The difficulties were, like, tax returns, payslips. … I wasn’t told in detail [what the difficulties were], no. … I was informed that an action by Centrelink taking half of the claim, if economic loss was claimed, would be more trouble that its worth.  
185	His recollection of what was explained to him was that:
	if um the formal economic loss claim was presented, Centrelink have the ability to come and take half of the gross of the overall claim. So in effect, the economic loss — the formal economic loss claim doesn’t make sense. But there was also, in addition to that, that we could channel those — that application to general damages. So in effect, you would still be receiving economic loss but it will be done in an informal way, not alerting Centrelink to take your claim, and to be compensated through your general damages. 
186	Mr Pearce said that he was not told ‘what difference to expect’ between a formal claim and an informal claim of loss of earnings. 
187	He also could not recall being told at any stage until that time what the potential claim was worth or being asked for his payslips. He said that he was ‘anxious’ about the difficulties posed by his tax returns and payslips because of the importance to economic loss in his claim. He said that no agreement was made at the meeting but that it had ‘ended well’ with Mr Seccull informing him of his appointment as a QC that morning which left Mr Pearce ‘feeling confident [he] was in good hands’.
188	In cross-examination, Mr Pearce said that he had a precise recollection that Mr Seccull had said that:
	it’s the second time I’ve heard the informal loss of earnings claim to be attached to a general damages claim. The reason that the advice was to pursue this was the Centrelink would - if an economic loss - a formal economic loss claim was proceeded with, Centrelink would come in and take half of the gross claim.
189	Mr Pearce specifically recalled Mr Seccull using the word ‘would’ as opposed to ‘could’. He did not accept that Mr Seccull had said there was a risk of repayment to Centrelink as recorded in Ms Zelez’s note. When asked whether if Mr Seccull had said nothing to him about Centrelink, he would have done something differently, he said: ‘I would suspect so.’
190	In re-examination, when asked whether Mr Seccull’s advice on Centrelink had any impact on his hopes as regards to being compensated for economic loss, he said it ‘derailed any desire to – to move forward with it’. He said that his understanding of Mr Seccull’s advice that it would be more trouble than its worth, was that he ‘understood that to mean from the Queen’s Counsel, his advice was not to continue with economic loss claim’. He did not feel he was in a position to question or dispute the advice because he ‘revered and respected the man’.  
191	He said that advice (i.e. as to Centrelink repayment) was not referred to again or changed before he accepted the offer to settle the claim, and that no one at Waller Legal had told him about Centrelink’s policy prior to the meeting with Mr Seccull. 
192	On 28 November 2016, Ms Zelez sent Mr Seccull an updated memorandum. It contained further information obtained from CBP, including that MSC were aware of 33 complaints in relation to Brother Mamo and six in relation to Brother Frith. It was also noted that Mr Creasey would be in a position at the ISC ‘to provide information regarding the identification of the appropriately indemnified defendant in this matter’.
193	On 29 November 2016, the ISC was held with CBP at the Law Institute’s offices. Mr Pearce was represented by Mr Seccull QC, instructed by Ms Zelez. Mr Creasey represented MSC. Father John Mulrooney, the Provincial Head of MSC was present and spoke to Mr Pearce during the course of the day. Ms Natasha Savic was the representative of CCI.
194	Prior to the ISC commencing, Mr Pearce conferred with Ms Zelez and Mr Seccull. It had been arranged that Mr Pearce meet with Mr Seccull and Ms Zelez at 10:30 am, however he was delayed and there was a short meeting with Ms Zelez and Mr Seccull, again recorded by Ms Zelez. The note commences at the time of Mr Pearce’s arrival and reads as follows:
	– no eco loss – can’t do it.
	
	– medical& like – past and future. 
	
	– medicare repayment approx $1200. 
	
	– future treatment – 3k – 19k range for future 
               treatment.

	– atm – not receiving treatment.
	                   – able to self-manage.
	
	– Triggs vs Dr Neill. 
	
	– on amount awarded } how you use it – up to you.
	
	– no treatment since approx March this year 
	
	– Tim will suggest somewhere in the middle. 
	
	– Generals – P&S – past, present and future.
	                   – not a precise calculation.
	                   – TS explaining.
	                   – fair & reasonable compo – in all circumstances 
	                   – jury – 6 ppl who have never met 
	                        you 
	
	–  we’ll look to a range.
	
	– Range $75 – $150k. ║ potentially.
	
	– TS explaining SAA judge case } $65. /  
	      → reality check. 
	
	– depends who is on jury + their life experience. 
	
	– frank advice. – reality. 
	
	– we’ll say to them generals assess @ 200k.
	   But just know reality 
	
	– 200k. Generals to start. 
	– 3 – 19k – middle for medicals 
	
	– decision to stop treatment } conscious decision.
	
	– Gary asked if we can claim school fees. EZ 
	            said no not really. 
	
	– we’re going in there “in reality” 
	     we could claim for you in court.
195	In his evidence-in-chief, Mr Pearce agreed that he did not remember everything that had happened on the day of the conference, however he recalled the first thing Mr Seccull said was ‘economic loss, can’t do it’ and that he had expressed his disappointment with that advice and highlighted the impact the abuse had on his education and career path. He said he understood Mr Seccull’s advice to mean there would be ‘no economic loss component attached to the claim’ and that Mr Seccull had said he would mention the effect of the abuse to MSC’s lawyers so there ‘would be an attachment onto general damages… the pain and suffering component’. 
196	Mr Pearce did not recall any discussion of what his claim might be worth, what kind of outcome he could expect to achieve at the ISC or what it might be worth if it was issued at court. He recalled Mr Seccull asking him for an amount and responding ‘around the 300’.
197	Later, when asked whether he had given Ms Zelez or Mr Seccull permission not to bring an economic loss claim, Mr Pearce said he did not and that he had no understanding’ of what was being put on his behalf ’cause [he] wasn’t made to understand’. When asked to expand on what he meant by that he said: 
	Um with discussions with economic loss with informal claims, general damages, that was basically the extent of the explanation, so my understanding of it was limited. 
198	In cross-examination, Mr Pearce said that he had an actual recollection of being told by Mr Seccull ‘straight off the bat’ — ‘economic loss, can’t do it’. He said that he did not ask why, nor did he accept Mr Seccull’s view on the issue. He said that he told Mr Seccull that he did not accept his view because ‘as [he had] said in the previous meeting, that the abuse had had a damaging effect on [his] education and career choice’, however he said he was ‘pacified with, “We’re going to get it. We’re going to do it in general damages”’ and that ‘with respect, being represented by QC, I had to accept his advice’. 
199	Mr Pearce agreed that all offers made at the ISC were authorised by him and did not believe that he had ever previously suggested that any of the offers were not so authorised.
200	On the setting aside application in 2022, Mr Pearce was cross-examined about the meeting with Mr Seccull and Ms Zelez prior to the ISC including the following exchange with counsel representing MSC:  
	COUNSEL: Right. And one of the things we know that happened was this; that apart - after some discussions about pros and cons of the case a money figure was put by Mr Seccull on your behalf. Did you know that happened in that room?
	MR PEARCE: Um, Mr Seccull never discussed money with me, except to highlight that the claim was going to be terribly, if settled, undervalued, because of my situation with Ellis. 
	COUNSEL: Yes? 
	MR PEARCE: That I had a big problem and basically you’re not going to like it, but you’ve got to beg, and I’ll try and beg as hard as I can for you. 
	COUNSEL: I see. Mr Pearce, one of the components of your claim that you didn’t claim was what is called economic loss. Do you agree with that? Your lawyers didn’t claim economic loss for you?
	MR PEARCE: Yes, I agree with that. 
	COUNSEL: Did they tell you, what, that you can’t claim it or what? Because you didn’t?
	MR PEARCE: I didn’t fully understand why but you sort of trust a little bit. You have to trust that they’ve got your best interests at heart.
	HER HONOUR: But the question that Mr Ruskin’s asking is did they tell you why?
	MR PEARCE: No, they didn’t, Your Honour.
	COUNSEL: But you, through your counsel today have said, well, you wanted to claim economic loss because you had, you said, suffered economic loss. Was that your state of mind on that day? It was, wasn’t it?
	MR PEARCE: Yes.  
	COUNSEL: But you didn’t claim it did you?
	MR PEARCE: No, there was no claim. 
	COUNSEL: Right. And just try and remember this, because in the claim you now have it’s a big component, isn’t it? It’s a large sum that your expert man Mr Thompson has formulated, you understand that don’t you? so just try and explain to us if you would what the lawyer said to you. Did they say you can’t claim it or something like that?
	MR PEARCE: No. 
	COUNSEL: Well why didn’t you claim it?
	MR PEARCE: I don’t know. I don’t understand it. 
	COUNSEL: You don’t understand why not?
	MR PEARCE: No.
	COUNSEL: All you can say to us is, ‘Look, I believed I had lost earnings and professional opportunities’, that’s what you thought, did you?
	MR PEARCE: In my mind, yes. 
	COUNSEL: Yes. And you had these lawyers who were acting for your benefit, didn’t you?
	MR PEARCE: Yes. 
	COUNSEL: And did they say to you anything, one word about claiming or not claiming?
	MR PEARCE: No, and I was pretty naive Your Honour.
	COUNSEL: Yes, naïve?
	MR PEARCE: To know how I should be represented, but one position I have come to now to understand is that period of Alistair Finch being established and a deterrent for any litigation there was a cycle, a treadmill of claims going through the system that sort of fell between this much and this much. Now how much effort you put into a claim, did it really have any benefit at the end of the day? I would say no knowing what I know now, and I think that’s - to give an answer, in my own mind, to give myself piece of mind that if an economic loss statement wasn’t prepared well you could look at it and say well I was inadequately represented, or you could look on the other side and say did it have - would it have an impact at the end of the day. so to give myself - - - 
	HER HONOUR: But you say that an economic loss impact statement wasn’t prepared?
	MR PEARCE: Yes, it wasn’t prepared, yes. 
	HER HONOUR: Did you have a discussion with your lawyers about why it wasn’t being prepared?
	MR PEARCE: No, Your Honour, I only discussed things that he wanted to discuss with me. 
	COUNSEL: So just to get this right, the expert barrister you had, we’ve talked about, the expert solicitor you had, your own view in your head that you lose - you had an economic loss claim significantly, for a reason which you can’t account for they just didn’t even discuss it with you, correct?
	MR PEARCE: That’s right. 
201	When asked about this evidence in cross-examination in this trial, Mr Pearce agreed that in answering ‘no’ to the question of whether his legal team had said anything to him about economic loss, he was incorrect. He said was unable to say why he gave incorrect evidence: he ‘didn’t know what [he] was doing there’ — ‘maybe [he] misunderstood the question, [he] wasn’t following’. When asked whether he had intended to convey to Forbes J that Mr Seccull did not discuss economic loss with him when he responded ‘No … I only discussed the things he wanted to discuss with me’, he said: 
I’m at a loss why I didn’t respond. I mean, there was plenty I could have elaborated on that because there were discussions on that. I don’t know where. I can’t help you on that one. I don’t know. It was a – a very um anxious time. It’s no excuse, but I can’t – I can’t give Your Honour an answer on that.
202	Mr Pearce rejected the suggestion that he had no recollection of the conference until he reviewed the written note. He accepted that his answer of ‘that’s right’ in the final part of the extracted cross-examination implied the denial of a series of discussions he had with Ms Zelez and later with Mr Seccull about bringing a claim for economic loss. However, he had no explanation as to how the incorrect evidence came about: 
	As I – as I outlined, I don’t – I don’t know. I don’t know whether I was suffering – I can see what mister – now, Mr Ruskin is trying to do and I was armed with all the information, but why I chose not to, I don’t know.
203	He denied that he had deliberately tried to mislead Forbes J. I reject this — a fair reading of the transcript of the cross-examination and Ms Zelez’s notes can lead to no other conclusion than on several occasions he lied as to the nature of the advice given to him by Ms Zelez and Mr Seccull. 
204	At the commencement of the ISC, Mr Seccull made an opening statement. Ms Zelez’s notes record it as follows:
– No eco loss – outset.
– Monivae } 2 periods – Mamo – 1977.
                                       – Frith – that year too.

– Liability.
→ not labouring too much.
→ Prince Alfred.

– Context Mamo:
→ plead guilty
→ context of “punishment”/ laundry room. 

   *  EZ will need to look @ sentencing remarks.

   → Complaint to Br Xavier.
   → Punishment/abuse continued

– Br Frith.
→ Some complaints rec’d re his conduct @ 
  Monivae.
→ pursuant to that [indecipherable] he committed abuse 
  manipulation of foreskin

– somewhere b/w 4 – 6 weeks. // most nights.

– not planning on discussing edu or eco

– more General Damages.

– conscious of what GP + psych say.

– aware of divergence of opinions b/w Triggs & Neill. 

– Dr Neill at least in part related to the 
    abuse. 

– We obviously prefer Dr Triggs’ diagnosis.

– conscious that in her view partial remission. 

– Triggs vs Dr Neill re cost of future 
         Treatment.

–      27,500

– Medicare NOC expired. 

27,400

– CCI have paid treatment .

– Triggs – 19,500 for 3 years treatment.
               – inpatient hosp 60k. 

– Dr Neill’s opinion – $3k. 

} 

 } 200k.

– General damages.                        11 – 12 years old.
                                    informed by doctors. 
      
– C & D → $27,400 approx. ]
205	Ms Zelez recorded Mr Creasey’s reply to Mr Seccull as follows:
	– Fair opening.
	
	– Prefer Dr Neill report.
	
	– more likely to side w her b/c of more 
	    comprehensive backgrnd.
	
	– alcohol – partially related.
	
	– personality disorder.
	
	– lack of parental structure, short term 
	
	  interruption to schooling, early acting career.
	
	– wide gulf re med expenses .
	
	– pg 13 – overlooked historical + other aspects .
	
– fair start . } in Dan’s opinion. 
206	Ms Zelez’s notes then record discussion as to Mr Pearce’s meeting with Father Mulrooney. There is a record of offers and counteroffers, the first made by MSC was in the sum of $90,000 inclusive, and Ms Zelez’s notes indicates that as ‘62,000k clear’. The next note reads as follows:
	→ Tim will go back w 290k all inclusive.	
	                                     √  approved
	
Ms Zelez then records:
	Tim suggests going back w $250k inclusive.
	                                     √  approved.
Ms Zelez’s notes then record further negotiations, concluding with the following:
	Dan is back → Final offer $130 all inclusive.
	
	Advise to reject.
	
	102 clear approx. 
	
	– 130k all inclusive } Tim thinks not great. 
	
	– Option →   1  further offer.    * NO

	→   2   leave it where we are.  √ yes.
Then the following is recorded:
	– suing } not straight forward.
	
	– we need to prove negligence. 
	
	– court would be complicated.
	
	– medicals < two different views.
	
	– if their psych preferred } could be significantly 
	         less than that.
	
	– Gary not keen to resolve for that.
	
	– Tim advising not to accept.
	
	– I indicated I agree w Tim’s assessment.
	
↓

	                             ⸝ costs
– Quoting 28k      – Ds                  
	                             ⸜ medicare

	– Tim suggested to Gary that (for effect) he
	    leave.
	
	– Gary agreed & left. 
	
	– Tim went back to Dan and explained Gary
	     had left – too far apart today. 
	
	Restated position of $235k incl.
207	Mr Pearce said in relation to the note about suing not being straightforward and that court would be complicated, that he was being advised that proving negligence was difficult — ‘very difficult’.
208	I have assumed that the above portion of the note from ‘suing not straightforward’ to ‘Gary agreed and left’ relates to the discussion between Mr Seccull, Ms Zelez and Mr Pearce. The following is then recorded — which appears to relate to a discussion between Mr Seccull and Ms Zelez after Mr Pearce had left:
	◦  TS said to EZ, just restated to set scene
	    that they’ll have to come up a bit.
	
	◦  TS thinks anywhere near $150k incl – accept. 
	
	◦  not one to run to court.
209	The ISC concluded with Mr Pearce having offered to settle his claim for $235,000 inclusive of costs and MSC having offered $130,000 inclusive of costs.
210	In cross-examination, Mr Pearce said that he hadn’t given much thought to how the ISC was going to proceed however after it started it was a ‘horse trade’ and a ‘terrible anxious time’ but that he ‘thought [he] was in good hands’. He had entered the conference with the sum of $300,000 in his mind. When asked whether he cared how items were allocated within that sum, he said he was being represented by a QC, ‘the process was in his hands’ and ‘who am I to second-guess that?’. If the other side had offered $300,000 he said he was minded to accept it however he did not understand — ‘not a clue’ — what he would be foregoing and had no advice on the deed at the time.
211	Mr Pearce said that his position at the end of the ISC was that he would accept $235,000 but he did not know he would have to give something up as it was never discussed. He thought if there was not a deed he could accept the money and sue at common law but he ‘hadn’t given it much thought’. 
212	Pausing here, I have reached the following conclusion. Mr Pearce’s evidence that he was not given any advice as to what his claim was worth must be rejected. His veracity as to the advice he was given by his lawyers is compromised significantly by his evidence on the setting aside application. It is abundantly clear from Ms Zelez’s notes that Mr Seccull explained to him that there was a range of between $75,000 to $150,000 recoverable for general damages with allowances for Medicare repayments and the cost of future treatment. It is equally clear that his recommendation to Mr Pearce was to commence negotiations by putting a figure of $200,000 ‘to start’ in respect of general damages and between $3,000 to $19,000 for medical expenses. 
213	It is also clear that Mr Seccull advised Mr Pearce not to pursue an economic loss claim. 
214	On 7 December 2016, after several missed telephone calls, Mr Pearce emailed Ms Zelez, the relevant parts of which read as follows:
	As I have no knowledge of this type of situation i am feeling very anxious.
	Is this normal for other side to be taking so long?
	One feeling i would like to share with you is 
	i have been having the feeling that there [sic] offer is under 200k that are they really buying one and getting one free,if you know what I mean.
	This is making me physically ill,and giving me a feeling of hopelessness and no control.
	I was hoping there offer would be one of truly displaying an apology.
	After meeting Malroony  i felt good about matters and a simple quick fair settlement, i would have been on very good terms with the world.
	But currently that is not on the table and i am feeling a little abused and certainly manipulated.
	It is important i forgive them in my head as well as my heart so as to fully put all this horror behind me. 
	So an update would be very appreciated.
215	Later that day, Ms Zelez replied by telephone stating that no further word had been received from MSC, and she would wait until the end of the week and then discuss with Mr Seccull ‘about what our next move might be’.
216	On 14 December 2016, Mr Pearce emailed Ms Zelez thanking her for the work she had done on the file, noting that he was angry towards the Church particularly as ‘the Pope himself has ordered these matters to be settled quickly and fairly’.
217	On 16 December 2016, Ms Zelez replied, noting that she had followed up CBP to see if there was any information that may assist in moving negotiations forward. Mr Pearce then replied:
	I am really hoping this can be wound up by next Wed.
	I will take your advice on both matters,regarding Malrooney and seeing Janice again.
	She can help with many things …..anxiety being one.
	However i continue to pray for a settlement like yesterday.
218	On 16 December 2016, CBP forwarded a Calderbank offer to Ms Zelez which read (omitting formal parts):
	‘Without prejudice Save as to Costs’
	Missionaries of the Sacred Heart – Gary Pearce
	We refer to the above matter and the informal settlement conference held on Tuesday, 29 November 2016 at our Melbourne offices.
	Settlement Offer
1.	Our client, the Missionaries of the Sacred Heart (MSCs), out of genuine concern for your client and his family, and in order to avoid the time and expense of ongoing dispute resolution processes (and potential litigation), make the following offer in full and final settlement of this proceeding: 
(a)	The MSCs offer to pay your client the sum of $130,000 all-inclusive in full and final settlement of the claim; and
(b)	The MSCs will agree to bear their own costs.
2.	Your client will execute a Deed of Release, wholly releasing the MSCs (and all related entities) from all claims arising out of the subject matter of his claim.
3.	The MSCs offer is open for acceptance until 4pm on Monday, 30 January 2017.
4.	We note that the MSCs provided to your client a pastoral session, which was delivered by Fr John Malrooney, on behalf of the MSCs, at the informal settlement conference.
	Key issues underpinning offer
5	We believe your client should accept the MSC's offer as your client will fail to establish that the MSCs have caused the loss and damage alleged in this claim by reason of its negligence for the following reasons:
(a)	Dr Neill diagnoses your client with:
(i)	Narcissistic/antisocial personality disorder; and
(ii)	Alcohol substance disorder.
(b)	However, and distinct from Dr Triggs’s assessment, Dr Neill notes that your client does not allege any typical traumatic stress symptoms except possibly for a brief period of time in late 2015. As such, Dr Neill finds no basis for a PTSD diagnosis, nor any depression or depressive symptoms.
(c)	Dr Neill is highly critical of Dr Triggs on page 13 of her report where she suggests that Dr Triggs has “overlooked historical and examination findings of pre-existing conduct disorder and related narcissistic/antisocial personality traits”.
(d)	Dr Neill concludes that your client’s narcissistic/antisocial personality disorder is not related to any abuse, the subject of this claim. She describes it as a “pre-existing conduct disorder”.
(e)	Further, Dr Neill concludes that your client’s alcohol use disorder is only partially related “given the positive family history”. At page 10 of her report, she identifies a large range of causative factors which underpin her diagnosis (see below), none which appear to have been properly identified, analysed and discussed by Dr Triggs.
(f)	It is therefore arguable that your client has suffered an ‘injury’ and we may, instead, be left to deal with an intentional tort / assault type claim.
(g)	The factors identified by Dr Neill as potentially having contributed to your client’s present diagnosis include his early development being disrupted by a lack of parental structure and guidance, short term care arrangements following the separation of his parents, being prematurely promoted to secondary school, not attending school for a period of time when residing with his father and some of his schooling being further interrupted by an early acting career.
(h)	On top of that, and as noted above, there is also a family history of alcoholism.
(i)	Dr Neill states that:
(i)	The alleged sexual abuse has not caused or contributed to a past history of unemployment; and
(ii)	She does not anticipate a negative impact on future employment.
(j)	Therefore, in our client’s view, there is no basis for any economic loss claim (however that may be framed).
(k)	Dr Neill concludes that your client’s prognosis is unrelated to any sexual abuse or physical.
(l)	Finally, the critical flaw in Dr Trigg’s report is that she fails to take a proper and detailed history from your client. In our view, Dr Neil’s report is far more likely to be accepted by a court given her thorough analysis of all pertinent matters.
6.	On the basis of all the matters set out above the MSCs regard the offer contained in this letter to be fair and reasonable.
7.	If this matter proceeds to litigation and judgment, and your client obtains a result no more favourable than the offer in this letter, the MSCs intend to produce this letter to the court on the question of costs and seek a special costs order. The MSCs will seek an order that your client pay the MSC’s costs from the date of this letter on an indemnity basis.
8.	This offer is made in accordance with the principles stated in Calderbank v Calderbank [1975] All ER 333 and Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435.
9.	If there is any aspect of this offer that you do not understand or you require clarification, please contact before the offer lapses.
	We look forward to receiving your acknowledgement of receipt of this letter and your client’s response to our client’s offer.
219	On 20 December 2016, Mr Pearce spoke with Ms Zelez by telephone about the offer. The relevant parts of her file note read as follows: 
– lawyer for MSC (CCI) response rec’d. 

– letter restated $130,000 inclusive.

} formal offer.

   Calderbank offer  ║  if we 
    |                   |
     EZ explained
              cost implications.

                          Dr Triggs          EZ explained re problem. 
– $130,000 ║  
                          Dr Neill }  |   → |       Attributes  difficulties to .

}

                                            M             ║ – upbringing.             un
                                                                      – personality.          helpful.
   
	– vulnerable child!!
	
	– relying. } on our advice & Tim’s.
	
	– court. ║ close.
	
	– no way take that . not accepting that.  
	
	– inclusive of costs. 
	
	– disapprove of that.
	
	                  ⸝  accept; or
	– options  –  continue to negotiate / try to
	      ⸜ litign * risks; cost implicns > we’ll need to seriously discuss
	                             
– conflicting psych report worried about it a bit after the appt.

– not 100% happy w that.

– feels like he could move on if fair.

– he’d happily gamble that.

– makes him feel ill that she has to put pen to paper
   & said not attributed to abuse at all.

– feels anxious.

– TS. } $140,000, 150,000 inclusive // $130,000

– other guys involved in claim } other claims against
                                                       MSC.

– buying one, getting one free.

– doubly done. // 2 offenders.

– not same set of dynamics

  he feels like they’re
– rejecting involvement of Frith.

– but he’ll be guided by us. It’s up to us to fund it. 
                 So he’ll wait for me to talk to VW + TS. 

– 11th Jan (2 weeks) } EZ explained closure.

//

           talk more when we    
– reopen then.   

– Melbourne Response raised their fee. [$150,000]

– All he can say in his own defence.
        → he is willing to gamble that . to walk away 
             w what he thinks. 

– he thinks would present well before a jury. 

}

– medical report ] < ] opinion.               EZ flagged possibility
                                                                  of diff medical
                                                                 opinion.

EZ summarised:

– just wanted to let him know – he appreciates that.

– need to discuss w Tim & VW.

– requires thoughtful & proper considern.

– as best he can – know that there isn’t
 anything he can do over Xmas...put it to 
 one side.              EZ/TS will look @ it in
 the new year & we’ll deal w it then.

– all good.

– he feels better now that I’ve said that, a
     weight off his shoulders.

– Have a good xmas – talk in new  year.

– He is in Dromana w his family–  
220	On 26 December 2016, Mr Pearce emailed Ms Zelez saying he was ‘[e]ager to put all this behind [him]’ and instructed her to make a counteroffer of $210,000 with the hope it could be ‘done by end of January’.
221	Mr Pearce said that at this stage no one had told him what his case was worth if he went to trial. It is clear from Ms Zelez’s notes that he was given such advice by Mr Seccull at the ISC.
222	On 11 January 2017, following what appears to be a review meeting with Waller Legal employees, Dr Waller met with Ms Zelez to discuss Mr Pearce’s file. Ms Zelez made a file note of that meeting:
	
Monivae
1977+78
Mamo + Frith
  ↑              ↑
Conviction   no 
	     conviction

Review meeting w VW.	11/Jan/16  Elisa.  
	
	RE: Gary Pearce.

<

                    235 incl } US      C & D = 28k.
	At conf      
                    
	                                   130 incl } MSC       Medicare = 1213.95.

– Calderbank offer to expire . 4pm Mon 30/01/17.
      130k inclusive.

Short summary
- Re Calderbank
 effect for 
 VW  .

– Description of the key issues in their letter.
o	medical material.   
o	Gary 

– other concerns } Gary as a witness.

– At conf … TS told Gary he would recommend 
                  an offer @ 140/150k incl …

– TS away 24/Jan/17.

– Option → EZ thinks letter to Gary w advice. Not in 
	       best interests to proceed to court … best to
	       try to resolve via ADR.

	 → idea re further medical opinion (?)

– Friday ║ MORNING  ] 11.30am. } Talk to 

223	In an undated memorandum to Dr Waller prepared for the purpose of a telephone conference with Mr Pearce to discuss the Calderbank offer made by MSC, Ms Zelez set out comprehensively the current position of Mr Pearce’s claim. The purpose of the call was said to be —
•	Discuss further with Gary the defendant Calderbank offer has been made in this matter and the cost implications.
•	Recommend to Gary that he try and resolve his claim out of court.
•	Seek to confirm Gary’s instructions about a suitable counter offer.
•	Consider whether we should get a second opinion about the defendant medico-legal report of Dr Diane Neill.
•	Consider whether Gary would rather await the possibility of criminal prosecution of Frith.
224	Under the heading ‘Instructions’, the following is recorded:
•	Gary instructed this office to progress his claim via the ADR process to attempt to reach a resolution via negotiation.
•	Gary instructed us not to issue a section 85B sentencing act application against Mamo, but to rely on his undertaking to accept late issue.
225	Ms Zelez then set out the basic facts and described the offers put at the ISC. The following then appeared under the heading ‘In summary, Tim Seccull’s advice’:
	At conference, Tim indicated to Gary (and to me) that if they came anywhere near $150,000 inclusive Gary should really consider accepting.
	Tim advised that a claim for loss of earnings was not viable.
	Tim thinks Gary should attempt to resolve out of court.
226	Then, under the heading ‘EZ thoughts’, the following:
	I agree with Tim, that an offer closer to $140,000 - $150,000 inclusive would be more appropriate.
227	Under the heading ‘Issues’, Ms Zelez noted the following:
•	The medical material, particularly the opinion of Dr Neill and the impact of that on causation.
•	Familial link to alcohol abuse.
•	Non-conventional early upbringing and education.
•	Likeability/credibility as a witness.
•	Stress associated with Hepatitis C condition.
•	Recent defamation proceedings against him (now settled) by a racing identity.
228	Under the heading ‘Liability wise – not “red hot” but not “the worst” either’:
•	See pages 13 - 18 of the memorandum to Tim Seccull.
•	Also see the update memorandum to Tim Seccull.
229	The memorandum then goes on to list the likely costs associated with the acceptance of an all-inclusive offer and the implications of the Calderbank offer.
230	Dr Waller said that it was her practice to read such a memorandum and that she would have done so prior to the phone call with Mr Pearce. 
231	Also on 11 January, Mr Pearce emailed Ms Zelez as follows:
	Hi Elisa and happy new year to you.
	Friday 12 pm is fine.
	I look forward to speaking with the boss lol.
	I have done a lot of thinking about the whole process and i have come to some conclusions.
	I feel and i am so hoping i am wrong.....that the offer given was always going to be the one that i and all get.
	Threatening no win no fee lawyers with expensive court action is a ploy and an ace card if you like that they always hold over all.
	There is simply no incentive for my or any other lawyers to go after them for more compensation when it is clearly deserved.
	A situation where all lawyers for the applicant require settlement regardless of quantum is paramount in keeping the whole show on the road.
	I understand what battles i face....and said to you long ago....i need to convince you first above anyone....do you recall that.
	You are a wonderful person and one i will never forget and always be grateful that you came in to my life when you did.
	Regardless of what the end result is here i will always have that opinion.
	I was very excited by the inclusion of the recently appointed QC you chose.
	Great choice,clever man and i really like him.
	But he to may have become a chain gang
	member......i mean this with the utmost respect.
	But i want to share with you my assumptions.
	It is sadly in everyones [sic] interest i settle this quickly so all get re inbursed [sic] for their efforts that are desrved [sic] and all can move on to the next one.
	I get that.....but it is me and i want what i want.
	I neither feel i am being unfair or unreasonable.....but it is not about me and what i want or is it?
	Kind Regards till Friday 12.pm via phone Gary
232	On 13 January 2017, as arranged, Mr Pearce conferred by telephone with Dr Waller and Ms Zelez. It was a lengthy discussion about the pros and cons of settlement lasting for approximately 20 to 30 minutes. After noting introductions and technical arrangements, Ms Zelez’s file note reads:
	– chat re where things are at.

– settlement conf.

– benefit of opinion of senior counsel.

– just been made a QC.

– rely on us for honest advice re where your case is at.

   At the
– ISC.
    ↓
– matter did not resolve.

]

– us 235 incl.
                  			                         Gary confirmed
– offer – 130 incl clear  101 300  	                        understanding of this.

– Calderbank offer } likely cost benefit.
                                  explained.
                                  could be considerable costs

	– chat re what prospects of success of litign might 
	    be.
	
– same page so that we can pursue strategy.

– Cath clergy abuse cases: – difficult
	                                 – Never been a successful 
	                                    sexual abuse case in Australia.
	
	– reason for that – current state of the law stacked against 
	      Plaintiff. 
	
	– lawyers acting for clients → wanting client to get 
	       compo.
	
]        

	– none of it is personal to Gary                                  Gary was understanding
	                                                                                                                              of this.
	– just the context – is difficult. 

– VW is concerned re Calderbank.
	
	– if push comes to shove difficult to pursue in 
	    court.
	
	– Probably correct. // Gary agreed
	
	–  most share common issues.
	
– none of Foster’s claims were statute bared. [sic]

– historical sex abuse cases different.

– correct to say 99% settle out of court.

– Gary is realistic, not a dreamer.

– not about getting my costs paid } VW clarified w 
                                                                          Gary.

– none of analysis is about not getting paid.

– job is to put Gary’s interests first.

– Pleased where it’s @. Not pleased w figure.

– On board w TS, EZ & VW.

– Question is not a bit more.

– VW prospect of 200k unlikely!

– we got a report from Dr Triggs – writes good 
       reports for P

– Dr Neill report – looks @ disjointed family life   +
                                educn.
                            – looks@ alcohol abuse – only partial 
                               Relation given family history 

– Battle of the experts. – can’t deny interruption.
                                        – can’t deny Hep C & DSP.
                                        – can’t deny family history.

                                        – facts are the same .  regardless of expert opinion.

– VW recommends going back w an offer closer
          to theirs.

– We don’t want to go back w something too high.

]        

– TS or not                   Doesn’t matter.
                                     He’s been involved in 100s of cases.

– Here is what your claim is worth          
     Vs.
     What we can get legally.

– We want to get as much as we can as possible.

– Gary would be willing to risk it.
     But we don’t think its [sic] gonna happen.

– Gary knows we’re willing to give it a 
          crack, he knows

– 75 incl – 150 incl. || Mamo. } the range of past
                                                               settlements.

– can’t go again – correct.

– no guarantee they’ll come up.

– Calderbank } suggests serious.
                                                     or    
– our advice 140k ˄ 150k incl …. But up to Gary.

– wouldn’t recommend much ↑er. They
    could ignore.

Gary:
– wouldn’t be foolish enough to not get on board.

VW explaining – we just have to do best we can
     w/o exposing them to awful risk ….

– Gary.: (Has 2 points …)

       1.  In regard to Frith. Many victims now
            on board.
            Could we use giving up Frith to get more $ from the MSC.
         VW
      (a) ◦ criminal offence to refrain from pursuing 
             charges for benefit. So wouldn’t recommend that approach.

      (b) VW doesn’t think it makes a diff to 
             MSC whether or not Gary goes ahead w Frith.

– crazy risky w no perceivable gain.

– good to ask – so you look to turn every 
     stone.

– thanks for telling me like it is.

– 150,000 inclusive.

– Be prepared that they’ll say speak to the hand.

   But advice is coming to end of road of 
          negotiations.

   At one stage, we might need to bite the
         bullet.

– 150,000 incl } he thinks this is okay.

         Confirmed instructions to do that / to put
                $150,000 inclusive.
                       he is on a 
– He feels like ˄ run away train.

– VW explains → despite difficulties, we have
     got to an ISC, we have got offer . . . . 
      He’s done well in the context.

– we’ll put 150,000 inclusive & see.

– Gary agreed & thanked VW & EZ for taking time
         to discuss.

TO DO —
      Contact DKC of CBP. Inform him of client’s
      instructions re Calderbank . . . 
      150,000 inclusive
233	In his evidence, Mr Pearce said that this was his first and only conversation with Dr Waller and could not remember if there was anyone else on the call. Dr Waller had no recollection of the conversation. Ms Zelez clearly was party to the discussion and her notes are the best guide to what was and was not said.
234	Mr Pearce said that Dr Waller told him that she had settled these cases in the past between the range of $75,000 to $150,000 and that the offer by MSC ‘was within the range’ and she advised him to go back with a counteroffer of $150,000. He said that the conversation was not very long and that he gave instructions to go back with an offer of $210,000 and his thinking in giving that instruction was ‘just hopeless… there were no avenues open, no options’. 
235	He said that he was aware that ‘economic loss was not even going to be claimed informally as part of general damages’.
236	Mr Pearce said that Dr Waller told him that she had settled ‘these cases’ in that range in the past. His counsel asked:
	COUNSEL: By that stage, in your mind, what do you think had happened to your loss of earnings claim?
	MR PEARCE: Um by now it was apparently clear that everything was predetermined.
	COUNSEL: Why do you say that?
	MR PEARCE: Because the - the offer that I’m being advised to go to was within the range. So it was all – economic loss was predetermined in my mind.
I then asked Mr Pearce what he meant by ‘predetermined’. He said: 
	Predetermined in the amount at the completion of the process…
237	He explained further in cross-examination:
	My view at that time was that the whole process has been predetermined, that this was the end result, always was going to happen no matter how much you song and danced about it… Ah I’d realised that a lot of these cases had progressed through the um – the process with no economic loss, that the figure amount was what all cases were settled at, regardless of individual’s um situations. And um it was apparent now… that it was all predetermined, the end result was all the same.
238	Mr Pearce also said that Dr Waller had never given him advice as to the value of his claim if it was issued in court.
239	In cross-examination, Mr Pearce initially asserted that by January 2017 he did not understand that it was possible to sue MSC at common law and, essentially, he was confined to bringing a claim under an ADR mechanism. He said that this was his understanding because of the advice as to the effects of the Ellis defence. However, later in his evidence he qualified this by saying that he ‘was shut out somewhat because of Ellis’ and the ‘claim would be difficult’, but that ‘the ADR process was not difficult’.
240	On 3 February 2017, and after considerable thought as to how it should be phrased, Waller Legal sent a Calderbank offer to CBP, offering $150,000 inclusive of costs.
241	On 22 February 2017, Ms Zelez emailed Mr Pearce: 
	I confirm that we did not receive any response to our offer from the MSC and CCI, therefore the offer has lapsed.
	I intend to speak with Dr Waller to seek her advice/recommendation about your options. …
242	On 22 February 2017, Mr Pearce replied to Ms Zelez:
	Hi Elisa thank you for your reply. 
	Sadly they know there [sic] in the drivers seat and litigation against them is highly unlikely. 
	I think it is time to end this and just grab what they have offered ,unless you feel otherwise. 
	It is so tiring and consumes my every waking moment,and i have had enough,i want to move forward but can not whilst this is ongoing. 
	I will not be the last one that is saddened by the church's attempt to heal wounds with victims, they are a real piece of work. 
	Let us end this if you feel we can not improve. 
	Confident of money being forthcoming i have committed myself with that knowledge,and i unlike them do not want to let people down. 
	As i have outlined to you my daughters wedding is 2 weeks away, and i have have promised an amount to them from my settlement, and not knowing how long after the money is forwarded, receive it,is making me very anxious. 
	Thank you Kind Regards Gary 
243	On 23 February 2017, CBP, on behalf of MSC, rejected Mr Pearce’s offer of $150,000 and made a counteroffer of $140,000. 
244	Later that day, Mr Pearce instructed Ms Zelez to accept the offer. Ms Zelez’s file note of the telephone conversation reads as follows:
	– Gary was happy
	– Gary said no need to think about it
	– Please write to them & accept
	– tell them to send paperwork
	      ASAP!
245	Mr Pearce confirmed that he gave these instructions with the understanding that he would receive about $110,000 ‘in his hand’.
246	Also on 23 February 2017, a draft settlement agreement was forwarded to Waller Legal by CBP. On 27 February 2017, Waller Legal asked CBP to include a clause acknowledging that ‘no claim for economic loss has been made and that the settlement sum does not include an economic loss component’, and CBP did so.
247	On 3 March 2017, Waller Legal emailed Mr Pearce attaching the settlement agreement for signing and explaining its effect. Upon confirmation of his postal address, the settlement agreement was sent by post on 10 March 2017.
248	The parties to it were as follows:
Name		Gary Pearce
Description		Claimant 
Notice Details		Address	c/- Waller Legal
	2 /57 Keele Street
	COLLINGWOOD VIC 3066
Name		Monivae College, Hamilton, Victoria (College)
Name	All prior, current and future principals of Monivae College, Hamilton, Victoria
Name	Corporation of the Society of the Missionaries of the Sacred Heart (the Corporation)
Name	Fr John Mulrooney, the Provincial for the time being of the Missionaries of the Sacred Heart
Name	All prior and future Provincials and Province Leaders of the Missionaries of the Sacred Heart
Name	All prior and future members of the Provincial Council and council members of the Missionaries of the Sacred Heart
Description		collectively the Respondents
Notice Details		Address    1A Waltham Street, Coogee NSW 2034
249	The settlement agreement provided for the payment of $140,000 and included the following release:
3.	The Claimant for himself, his executors, administrators, heirs and assigns forever releases and discharges the Respondents, servants and agents both jointly and severally from all actions, suits, claims and demands of every description past present or future relating to or arising from the Claim or any of the matters set out in this release which he now has or which he might have had but for the signing of this document.
…
7.	The Claimant covenants and agrees that he will take no action against the Respondents or any servant or agent of the Respondents or any of them in respect of the Claim or in respect of the claimant's presence, attendance, tuition and or relationship to the College or relationship to Mamo and/or Frith or the Respondents.
250	On the issue of economic loss, clause 9 provided:
	The parties acknowledge that no claim for economic loss has been made and that the Settlement Sum does not include an economic loss component. 
251	Mr Pearce signed the settlement agreement on or about 15 March 2015. He said that he understood that he was ‘giving up [his] rights to further sue the defendants’.
252	On 12 April 2017, CBP sent Waller Legal a copy of the fully executed settlement agreement. 
253	On 21 April 2017, Waller Legal wrote to Mr Pearce confirming resolution of his claim for $140,000 and enclosing a cheque for $111,122.45 being his net payment after deduction of Waller Legal’s costs and disbursements of $27,663.60 and a Medicare repayment of $1,213.95. 
254	In 2019, Mr Pearce became aware that he could revisit the claim against MSC and contacted Waller Legal, who advised him to find another lawyer, and he then engaged Rightside.
Mr Pearce’s evidence as to his mental health
255	In his late twenties, when Mr Pearce was undertaking agency work as a chef, he said that he struggled with his mental health and would ‘struggle with understanding it all’ — understanding the events and what had led him to where he was. He was ‘down’ on himself and his lack of achievements and became depressed. He said ‘at the age of nine, it wasn’t a life anyone would choose for themselves’. 
256	In 2010, Mr Pearce first sought medical assistance with his mental health. He said that he was ‘just not coping with anything’ and was ‘incapable’ and someone took him to his one of his GPs, Dr Mirhom. He said that he had suicidal thoughts and ‘just didn’t want to live anymore’. He started having suicidal thoughts in his teens but not so regularly (a few times a year) and not ‘to that extreme’. He had never attempted to commit suicide. 
257	Dr Mirhom arranged for Mr Pearce to be taken to Monash Hospital where he was admitted to the psychiatric ward for between five and seven days. He said he was prescribed medication whilst there but did not take it. He was prescribed antidepressants when he left hospital but ‘they actually made [him] worse’. 
258	He described one occasion when he was crossing the road to see Dr O’Brien, another general practitioner, and nearly jumped in front of a bus. Dr O’Brien changed his medication and referred him to psychologist, Ms Whetton, on a ten visit mental health care plan. 
259	Mr Pearce said that he revealed the abuse to both Dr O’Brien and Ms Whetton, though in less detail to Dr O’Brien. He took Zoloft for a period of time but is no longer taking it. 
260	As to the state of his mental health in late 2016 to early 2017, he said he was ‘without being dramatic, under great duress’.
Mr Pearce’s medical treatment and medical opinions relating to his claim
261	In a report to Waller Legal of 11 February 2016, Mr Pearce’s GP, Dr O’Brien, stated that in September 2015 Mr Pearce had sought a mental health care plan for psychological counselling related to his past history of sexual abuse. In October 2015, Mr Pearce was given a Centrelink medical certificate as he (Mr Pearce) felt he was not capable of working as a chef. Dr O’Brien noted that Mr Pearce had admitted to consuming a slab of beer per week. He prescribed anti-depressant medication to Mr Pearce and discussed the suicidal ideation which Mr Pearce had been experiencing.
262	Dr O’Brien had not seen Mr Pearce since 4 January 2016 and described him as a ‘work in progress’ in relation to his anger, sleep, and alcohol issues.
263	Mr Pearce received treatment from psychologist, Ms Whetton between approximately September 2015 and some time in the first half of 2016. In a letter dated 2 November 2015 addressed to Ms Marnie Vickers of the Witness Assistance Service at the Office of Public Prosecutions, Ms Whetton stated that in her opinion Mr Pearce was suffering from anxiety and reactive depression, with some features of Post-Traumatic Stress Disorder (‘PTSD’). She noted that Mr Pearce recently completed a Depression Anxiety Stress Scale (‘DASS’) questionnaire, showing depression, very severe anxiety and severe stress. She also noted that his mental health has stopped him working ‘over the past several months’.
264	In a report dated 28 February 2016 addressed to Waller Legal, Ms Whetton stated that she considered Mr Pearce was suffering from major depression with anxiety, as well as symptoms of PTSD. She noted that he was constantly ruminating over thoughts and memories of past abuse and had suicidal ideation. Ms Whetton said that she was providing treatment for Mr Pearce to manage his symptoms, but that because of the seriousness of the alleged abuse and its impact on his ability to function, it was difficult to provide a clear opinion as to his prognosis. Ms Whetton believed that Mr Pearce would require ongoing therapy and treatment for some time to come.
265	On 21 April 2016, Mr Pearce was examined by consultant psychiatrist Dr Wendy Triggs at the request of Waller Legal. Dr Triggs prepared a report dated 25 May 2016.
266	Dr Triggs diagnosed Mr Pearce with ‘Post Traumatic Stress Disorder, chronic’ which was in partial relapse, and ‘major depression, episodic’ which she considered to be in partial remission. She considered the abuse to have been ‘the major contributing factor’ to the onset of these conditions and that the difficulties he had experienced throughout his life were sequelae to the abuse. Dr Triggs was of the opinion that Mr Pearce’s post traumatic symptoms had ‘limited his capacity for employment’ and his educational and work history had been ‘markedly affected’ by the abuse. She noted:
	He had aspirations to study law and felt skilled and capable to this degree.
	… 
	His post traumatic symptoms continue to plague him in his adult years and effect [sic] his concentration and performance. 
	…he is on a disability pension and unable to work due to his symptomatology.
267	At the request of CBP, consultant psychiatrist Dr Diane Neill examined Mr Pearce on 6 October 2016 and prepared a report dated 13 October 2016. At the time of the assessment, Dr Neill noted that Mr Pearce was unemployed and in receipt of sickness benefits while undergoing treatment for Hepatitis C.
268	Dr Neill noted that Mr Pearce felt as though the abuse he experienced at Monivae caused him to develop premature substance use issues, dysfunctional interpersonal relationships, distracted him from schooling, and created a mistrust of authority figures. 
269	Dr Neill was of the opinion that Mr Pearce had ‘narcissistic/antisocial personality traits arising from pre-existing conduct disorder, and a chronic alcohol use disorder’. She noted that whilst his personality traits did not fulfil the criteria for a disorder, ‘the interaction with his alcohol use disorder and the degree of poor insight involved is sufficient to be included formally in the diagnostic framework’. Her opinion as to the relationship between these personality traits and the abuse at Monivae was variously expressed as being ‘not clearly related’ and ‘unrelated’. Her opinion as to Mr Pearce’s the alcohol use disorder was that it was only ‘partially related’ to the alleged abuse at Monivae, given there was a positive family history of alcohol abuse. 
270	Dr Neill considered that Mr Pearce’s alleged abuse had ‘not caused or contributed to a past history of unemployment or underemployment’, and she did not anticipate a negative effect on future employment capacity. Dr Neill said that Mr Pearce’s prognosis was not related to any alleged sexual or physical abuse. 
271	Mr Pearce has been examined on two occasions by consultant psychiatrist Dr Matthew Tagkalidis — the first for the purpose of the MSC proceeding and the second for the present proceeding. He produced two reports dated 27 May 2021 and 16 May 2024. 
272	In his first report, Dr Tagkalidis diagnosed Mr Pearce as suffering from a chronic dysthymic disorder, features of complex PTSD with associated substantial personality disruption, and chronic alcohol use disorder. He considered that Mr Pearce had been developing ‘largely normally’ in life prior to the abuse, however the abuse ‘damaged his developmental trajectory irretrievably’. Dr Tagkalidis considered that 90% of Mr Pearce’s long-term and emotional vulnerability had been caused by the abuse and its long-term sequelae with the remaining 10% resulting from preceding family disruption.
273	Dr Tagkalidis was of the opinion that it was the abuse had ‘clearly’ led to lower career achievements and earnings than would otherwise have been the case, and the impact of the abuse on his educational achievements, his employability and his career achievements was ‘substantial’. He wrote:
	he clearly had the intellectual capacity to complete his secondary schooling and more likely than not a tertiary degree, and would have been more likely than not to have a professional career. 
	It is clear that the trajectory altering effects of the abuse period caused the disruption in a crucial period of education which caused his ongoing academic achievement to falter and cease early. 
	His working career has been hampered by poor stress tolerance, poor self worth and low confidence, and a lack of tolerance of authority figures, all directly the result of the relevant abuse period.
	As such, I think it is highly likely that he would have had a far more consistent, successful and productive working career, but for the long term trajectory altering and long-lasting effects of the relevant abuse period. There is no other significant contributor to the substantial detrimental shift in his achievement post abuse period. 
	I would suggest that he would have overcome the early family disruption if the abuse had not occurred and that his long term educational and vocational outcomes and working history would have been far superior to those he has achieved to this point in his life. 
274	Dr Tagkalidis considered that Mr Pearce would ‘in all likelihood drift from job to job in the medium to long term future’ and experience issues related to his chronic dysphoria, interpersonal difficulties, and excessive alcohol use for the foreseeable future. 
275	On 16 December 2021, in the MSC proceeding, Mr Pearce was examined by forensic psychiatrist Dr Alan Jager, at the request of CBP. The examination took place over Skype. Dr Jager prepared two reports dated 31 December 2021 and 9 October 2024 — only the first report was tendered.
276	Dr Jager diagnosed Mr Pearce as suffering from alcohol dependence and chronic PTSD. He considered that, whilst Mr Pearce was predisposed to the development of a psychiatric illness prior to the abuse as a result of his parents’ separation, he would not have developed PTSD but for the abuse. Dr Jager was also of the view that Mr Pearce’s alcohol abuse further predisposed him to the development of mental illness. He disagreed with the opinion expressed in Dr Tagkalidis’ first report that Mr Pearce was suffering from alcohol use disorder which had been primarily caused by the abuse and opined that he considered Mr Pearce’s alcohol dependence to have been ‘overwhelmingly, unrelated’ to the abuse. He was of the view that the abuse was responsible for 80% of the chronic PTSD and constitutional and other factors contributed 20%. He allowed 10% attribution of Mr Pearce’s alcohol dependence to the abuse. Dr Jager otherwise noted that there was ‘large agreement’ between himself and Dr Tagkalidis in terms of diagnoses with the sole difference being Dr Tagkalidis’ diagnosis of dysthymic disorder. In his opinion, Mr Pearce’s depressive and anxious symptoms were adequately explained by his own diagnoses of chronic PTSD and alcohol dependence. 
277	Dr Jager considered that, based on Mr Pearce’s testimony, he was ‘a boy of superior intellect’ and he considered that he ‘has the capacity, should he wish, pursue further academic interests’. He noted that there were no supporting materials confirming Mr Pearce’s scholarship to Monivae, that he was ‘top of his class’ at Gardenvale or in respect of his reported professional stage/TV/pantomime appearances and accordingly his opinion ‘in part, relied upon the genuineness of the plaintiff’s self report regarding those matters’. 
278	Dr Jager also noted that Mr Pearce described a dysfunctional relationship and occupational history, strongly suggestive of a mild personality disorder, however had demonstrated he ability to maintain long-term relationships and find new employment and that on balance he considered that the diagnoses of PTSD and alcohol dependence adequately explain his dysfunctional relationship and occupational history and that there was insufficient reason, therefore, to make an additional diagnosis of personality disorder.
279	Dr Jager considered Mr Pearce’s prognosis to be ‘unfavourable’, noting his unemployment and alcohol abuse, and the lack of comprehensive management of his condition. 
280	On 16 May 2024, Mr Pearce was examined by Dr Tagkalidis for a second time at the request of Rightside, this time in respect of the present proceeding. In his second report, Dr Tagkalidis stated that there had been no significant changes to the opinions expressed in the first Tagkalidis report concerning Mr Pearce’s diagnosis and prognosis. 
281	Pausing here, three things may be noted. First, at the time of the settlement of Mr Pearce’s claim, the reports of Dr Tagkalidis and Dr Jager were not in existence. Nor would they have been in existence at the time of any putative settlement or trial of Mr Pearce’s proceeding, assuming it was issued in 2017. However, they are of relevance as they demonstrate that it is likely that such opinions could have been obtained in 2017 or 2018. Particularly so in the case of Dr Tagkalidis (and to a much lesser extent Dr Jager) which was supportive of the opinion of Dr Triggs and squarely contradicts the opinion of Dr Neill as to the effect of the Monivae abuse upon Mr Pearce’s ability to work. 
282	Second, in determining which consultant psychiatric opinion would be preferred by a tribunal of fact (be it judge or jury), it is not just a question of the numbers. Here, the expert psychiatrists line up three against one in support of a connection between Mr Pearce’s abuse at Monivae and his mental health condition and its affect upon his ability to work. However, whilst a consultant psychiatrist can rely upon his or her professional expertise in determining whether there is a link between an event and its consequences, much depends upon the veracity of the client and acceptance of his or her account, as Dr Jager observed. That is not to say that, in this case, the majority psychiatric opinion would not have been accepted, however, to caution that much would have depended upon what the tribunal of fact made of Mr Pearce as a witness in its assessment of acceptance or rejection of those opinions.
283	Third, I have absolutely no idea how Dr Tagkalidis could be so confident about Mr Pearce completing tertiary studies and proceeding to a professional career. There was no neuropsychological testing performed and it simply appears to be based upon his impression as result of the two consultations. Indeed, all the psychiatrists record that Mr Pearce self-reported being academically gifted — e.g. ‘a bright student’ (Dr Triggs, Dr Tagkalidis), ‘had the intelligence’ to become a lawyer and barrister (Dr Tagkalidis), ‘academically promising if not gifted’ (Dr Neill), ‘top of the class’ (Dr Jager).
The evidence of the other non-expert witnesses called by Mr Pearce 
Kathryn Taylor — Mr Pearce’s mother
284	Mr Pearce’s mother, Ms Taylor, described the household Mr Pearce grew up in in the 1970s as a happy household and ‘quite a close knit family’ / ‘a very close family’. To her knowledge, Mr Pearce had not suffered any form of physical or sexual abuse in the home.
285	She said that prior to going to Monivae, Mr Pearce was ‘very assertive, very confident, academically bright’ — ‘it came easy to him’. He joined everything as in any type of sport and was very good at everything, including dancing and theatre. He performed on stage singing and dancing at South Street competitions, won every aggregate (under six, under nine, under 12) and got a part in Gypsy at Her Majesty’s Theatre in 1975/6 when he was 10. At his first parent teacher interview at Toorak Central Primary School, the words ‘he’s a born leader’ were used. He ‘always did well in – in pretty much every subject’.  
286	They were very close however that changed when he came back from Monivae. Upon his return he was ‘very different’ — ‘very unhappy’, argumentative and did not listen to her as he had before. He did not want to go back and did not say anything about the abuse. He never went back to performing on the stage.  
287	After moving to St Joseph’s, she noticed ‘a big change in him’ — he was more withdrawn, ‘often sort of in a bit of slump where was just not himself’ and ‘didn’t seem to have the same zest for life in quite the same way’.
288	At Cathedral College, Mr Pearce’s academic performance was ‘not the same as what he was’ and ‘his whole attitude was not the same’ as before Monivae. She recalled an occasion when she insisted he attend a religious weekend away with the College and the headmaster agreed to facilitate his attendance, however when Mr Pearce saw his bag, he ran home. Such defiance was out of character.  
289	In terms of career aspirations, Ms Taylor said that ‘it was always law’ and this had first been discussed probably before Monivae when he was about 10. She was not sure where his attraction to law came from. He just said ‘I’d like to do law. I’d like to study law and be a lawyer’. He loved horses, but she did not think he was ever thinking about being a jockey and in any event he was he was ‘too heavy’. He enjoyed dancing but there was ‘not a lot that he could have ah done in career dance-wise’. He had intended to carry on with his entertainment, but not as a career. 
290	Ms Taylor’s recollection was that Mr Pearce did not tell her about the sexual abuse until he was talking to the police. She could not recall if Mr Pearce had written a victim impact statement and when asked if she had written anything in support of him, she said that ‘nobody contacted [her] at all’. She said that if she had been contacted she would have been ‘very happy’ to assist with any questions about his case, as she was when she was contacted by Rightside for the present proceeding. 
Charmaine Radke — Mr Pearce’s first ex-wife
291	Ms Radke met Mr Pearce through mutual friends in about 1982 and commenced a relationship with him within a month or two of meeting, moving in pretty well straight away. At the time, she was 22 years old and Mr Pearce was 17. 
292	The relationship lasted about two years and produced two children, Kent and Jacob. They were married four months prior to the birth of Kent and separated probably 11 months later. Jacob was born about two years after they separated.  
293	Ms Radke described the relationship as ‘tumultuous’. She said Mr Pearce was ‘very bright’, ‘quite intelligent’, ‘energetic’ and ‘even though he was young, he seemed older than he was’. Regarding his emotional state, she said did not notice him showing ‘depression or anything like that’ but that he was ‘messy’ in the sense that ‘he went from one thing to another… not always stable’. He did not hold jobs for very long and they were ‘chasing [their] tales for money’. He drank a lot socially. 
294	They had a ‘pretty full on sexual relationship’ — it was ‘like a necessity to him’ wanting it every day and if not, masturbating. He was also involved in the sex industry before the birth of their first child — giving and receiving oral sex for money a couple of times a week when they were short of money. He ‘never showed any interest in men at all’. 
295	They remained in contact after their separation to varying degrees. Her understanding was that he continued to be in and out of jobs and to have very little money. 
296	Ms Radke was only told of Mr Pearce’s abuse in the last couple of years when he told her he had gone to court in relation to it. She was never contacted by Waller Legal at any stage during 2015–2016 regarding Mr Pearce making a compensation claim and had not spoken with the firm until the present proceeding. Had she been contacted, she said that she ‘certainly would have’ been happy to help with any questions they had. 
Sarah Higgins — Mr Pearce’s second ex-wife
297	Ms Higgins met Mr Pearce in about 1994 when she was a server, and he was a chef at the Rosstown Hotel. They were in a relationship for 13–14 years, marrying in 2001 and separating in 2008. They have three children together.  
298	Her first impressions of Mr Pearce were that he was ‘a pretty good guy — ‘very confident, smart and good at his job’, however this was ‘not the true person that he was’. He suffered from bouts of depression and anxiety. He would get upset and angry if things did not go his way. He drank every day: multiple long neck VBs most days, ‘if not an excessive amount’ to the point he was drunk.  
299	She said that Mr Pearce could not hold down a job. He did not like being told ‘no’ and liked to feel in charge. He did not like it if anyone challenged him. Either he would get his own way and stay a bit longer ‘until it blew up again’ or he’d end up in an argument and just walk out. She worked in the kitchen with him in different establishments and said that if the owner came in and Mr Pearce did not like what he was saying ‘it would usually turn quite heated’. He worked as a chef in the time they were together however ‘was unemployed for more than he was employed’. She was the principal breadwinner. 
300	Money was always a ‘significant issue’ for Mr Pearce. He always wanted to see his children however a lot of times he was unable to due to lack of funds and he would not have money for food or to look after the children while they were with him.
301	She said that Mr Pearce told her ‘a few times’ that he had been sexually abused at Monivae but ‘not really in much very detail’. For the most part, he kept it ‘quite private’.  
302	She said that Mr Pearce mentioned on ‘many, many occasions’ that he wished he could have stayed at school longer because he wanted to become a lawyer. She encouraged him to go back to study however he never did due to the trauma. She said she thought he ‘realised he couldn’t do it in the end’ even though he was ‘definitely smart enough’. She thought he ‘definitely would make a good lawyer’ as he was ‘quite intelligent’, and ‘very good’ at gathering evidence and arguing a point.
303	She was aware of the court case in 2015–2016 though did not know who was representing him. She was never contacted by Waller Legal to discuss her observations as to the impact of the sexual abuse on Mr Pearce. She answered affirmatively that if she had been contacted she would have been happy to help with any questions about Mr Pearce’s case ‘[just] like I am now’. 
304	I make the following observations as to the cogency of this body of evidence: I accept that each of the three lay witnesses were credible witnesses. I also accept that Mr Pearce has had a variety of issues relating to his mental health as described by those witnesses. Similarly, it can be accepted that, at times, both during his youth and adulthood, Mr Pearce has expressed his desire to study and practice law — just as he had expressed aspirations to be a Jesuit, a missionary, or involved with the preparation and training of racehorses. However, and I will return to this later, I am totally unconvinced (particularly after seeing him give evidence over three days) that this body of evidence can underpin an assertion that he may have been a successful lawyer — as his lawyers instructed the forensic accountant, Mr Thompson.
The evidence of Waller Legal’s handling of other institutional abuse claims
Michael Schack 
305	Mr Schack gave evidence and said that he attended Monivae between 1962 and 1967 as a boarder. In his he described being abused by a Brother Morgan in 1967 when he was in Form 6 and in the Cadet Corps.
306	Later in the year, and whilst on a camp, he spoke to Father Prentice, the director of Monivae and the officer in charge of cadets. Mr Schack said that Father Prentice had approached him and told him that other boys had raised concerns about Brother Morgan and mentioned his (Mr Schack’s) name. Mr Schack related to Father Prentice, in general terms, the nature of the abuse that had been perpetrated by Brother Morgan.
307	Mr Schack then said that in May 2013, he had spoken to Dr Waller about the abuse.
308	In a letter dated 20 August 2013, Dr Waller confirmed Mr Schack’s instructions in relation to the abuse and advised Mr Schack that there were several possible courses of action available to him, including a common law claim in negligence against MSC. The letter explained that a common law claim would face complex legal technicalities, and it would be necessary to show that MSC knew or ought to have own that Brother Morgan was a risk to children, and they failed to take appropriate action. It was also noted that such a claim would also likely face the barrier of being statue barred. 
309	In the letter, Dr Waller stated that she was hopeful that informal settlement discussions could take place with MSC, as she had been successful in this approach in many matters involving the Christian Brothers and the Salesian Brothers.
310	On 2 July 2014, Dr Waller wrote to Mr Schack enclosing his Medicare history statement for completion and to confirm an upcoming telephone appointment with Ms Zelez.
311	Dr Waller wrote to Mr Schack again on 9 February 2017 to confirm that he had not contacted Waller Legal for some time. The letter stated that Waller Legal would be pleased to assist Mr Schack with a claim against MSC and advised that he contact Ms Zelez to discuss a plan for moving forward. It was noted that if Mr Schack did not contact Waller Legal, his file would be closed but unless instructed otherwise, he would be added to the firm’s Redress Register to receive updates about the national redress scheme which had been recently announced. 
Andrew Ure
312	As mentioned earlier, the Ure file formed the basis for the adjournment application. Mr Ure first instructed Waller Legal in 2012 in his claim for damages against the Christian Brothers arising out of alleged abuse in 1984.  
313	Mr Ure did not give evidence but extracts from his Waller Legal file were tendered. These included a typed file note from Dr Waller to a junior solicitor with the date 9 February 2013. The note sets out a to-do list in relation to Mr Ure’s claim, including the following passage:
	As Andrew has been on the dole for significant periods of time, it will be necessary to consider what repayments might arise to Centerlink [sic]. Please contact centre link [sic] and find out how this is achieved, (I imagine a process a bit like a Medicare Notice of Charge) we will need to know what repayment might be required, or if there will be a period of preclusion from social security etc, in order to quantify and assess his common law claim.
314	Ms Zelez was also involved in managing Mr Ure’s claim. Her handwritten file note of 15 September 2014 details instructions given to her by Dr Waller relating to Mr Ure’s claim, including in relation to material necessary for the purposes of making a claim for loss of earnings. The note contemplates a potential repayment by Mr Ure to Centrelink in the event of any amount for loss of earning capacity being received.
315	A later note by Ms Zelez of 19 September 2014 records a phone conversation between her and Mr Seccull with the following note:
	EZ to work out any repayment to Centrelink – this may influence decision about whether it is in fact worth Andrew’s while claiming formally for loss of earnings.
and under the heading ‘TO DO’:
(3) 	EZ work up A. Ure’s LOE component!
316	A typed file note of Ms Zelez of 21 October 2014 records a phone conversation between her and a member of the Centrelink compensation team regarding the potential of Centrelink repayment for any loss of earnings component of Mr Ure’s settlement sum. It noted advice from the Centrelink officer that confirmation of any Centrelink repayment was determined on a case by case basis and could not be obtained until after the deed of release had been signed, but that:
	Jeff stated that he would not expect that there would be a charge – he seemed pretty confident
317	On 10 August 2015, Ms Zelez summarised her research in a memorandum which included the following:
	Generally this means that, in our cases, the preclusion period would have started when they were injured as children, and will (in most cases) have finished by the time the plaintiff is receiving any benefits.
318	A handwritten file note of Ms Zelez of the same day records a phone conversation between her and Mr Seccull, including the following note:
	RE: Andrew Ure.
	→ Concerns re repayment to Centrelink.
	→ I explained my research.
	→ I don’t think it will affect repayment, but it may affect future eligibility.
319	Also on 10 August 2015, Ms Zelez emailed Mr Seccull referring to their conversation and attaching a file note of her conversation with Mr Ure that day and a document titled ‘Centrelink information’.  
320	Dr Waller also emailed Mr Seccull on 10 August 2015: 
	There is no way, of which I am aware, to determine the centrelink liabilities in advance. This is regrettable.
	Elisa has made inquiries in this regard.
	For childhood sexual assault matters there is unlikely to be an issue, for reasons she can explain.
	However, any lump sum compensation will factor in an assets/means test and may affect a client’s eligibility for benefits.
	For smaller claims it is viable to package the compensation as for pain and suffering only, if that is the case, but not so for larger sums which have claimed loss of earnings initially as Defendants feel the need for centre link clearances at their end.
	The client can be given an indication of centrelink’s position by EZ, and will need to instruct us to accept any offer on the basis of an estimate re centrelink. They will also need to check any means/ assest test calculation to see if the additional asset precludes them from eligibility. This information can be ascertained in advance.
	There is an on line calculator - which does not work pre 80’s - which i think is an indication that if it is pre 80’s no repayment is likely to arise because of the way the formula works.
321	Dr Waller then made enquiries with Angela Sdrinis (another practitioner representing plaintiffs, the subject of institutional child sexual abuse) as follows:
	We don’t do many serious loss of earnings claims as they are generally difficult to establish for child sexual assault matters.
	But we’ve got a sizeable one coming up for a settlement conference tomorrow and the fellow is currently on centrelink benefits.
	Is there any way of determining in advance with Centrelink issues of repayment / periods of preclusion? Or working out the likelihood of this?
	Do you have much difficulty with this? How do you handle it?
	Any tips would be greatly appreciated.
322	Upon receipt of Ms Sdrinis’ reply, Dr Waller emailed Ms Zelez to tell her she was ‘on the right track. ½ settlement deemed to be LOE and then the formula as set out in the act.’
323	An ISC was held in Mr Ure’s claim on 11 August 2015. Mr Seccull was briefed by Waller Legal to appear on his behalf. His claim was not resolved but there were further discussions between Waller Legal and Mr Ure as to settlement.
324	A file note by Ms Zelez of 14 August 2015 records a phone conversation between her and a member of the Centrelink compensation team and notes:
	I explained the following:
•	Attended a recent settlement conference
•	Proposed settlement figure
•	Want advice re potential repayments and future eligibility
•	Claim for compensation in relation to childhood sexual abuse
•	Proposed lump sum figure of $250,000 inclusive of our legal costs
•	Loss of earnings type component
•	Date of injury 01/01/1984
•	Client has been in receipt of Austudy and Centrelink benefits throughout his life
…
Mark advised me – in terms of repayment
•	The preclusion period will start from the date of injury/abuse — 01/01/1984 
•	If the amount is $250, we divide that in half →  $125,000 
•	Then we divide $125 by approx. 934 → that gives us around 133 weeks or approx. 2 and a half years 
•	That means that by the time that the preclusion period ends → unlikely that he was receiving anything then anyway 
•	The period would end at approx. July 1986 
•	Not going to be a repayment
•	Very confident
•	He said they’re not going to want everything he has ever received back, it’s only ever during that “period”
…
I asked whether there is any way of getting written confirmation about the above. He said no. Just tell your client what I have told you. He’d be very surprised if the result was any different.
He was really helpful.
325	In a letter to Mr Ure dated 26 August 2015, seeking his instructions regarding the defendants’ offer, Waller Legal advised him that there should be no Centrelink repayment following the settlement of his claim. 
	Centrelink 
	As discussed, because your claim involves a loss of earnings component, we have been in correspondence with Centrelink regarding potential issues of repayment and future eligibility. 
	Centrelink are unable to provide a written guarantee prior to settlement. 
	However, the below is what they have indicated to us verbally. 
	Upon any settlement, forms will be completed to notify Centrelink. 
	Repayment 
	Centrelink have indicated that you will not be required to repay any past benefits paid. 
	The way that Centrelink determine whether there will be a repayment is as follows: 
	Upon receipt of the deed of release, they apply a formula to the settlement amount to work out a “preclusion period”. 
	It is during this “preclusion period” that you would have to repay any benefits paid. 
	When the compensation is a lump sum, the “preclusion period” commences from the date of injury. 
	In your case the date of injury for this purpose is 1 January 1984. 
	Based on the amount of $250,000, staff from Centrelink verbally indicated that the “preclusion period” in your case would run for approximately two and a half years - from 1984 until mid-1986. During this time, you would have been aged thirteen to fifteen and a half years old. You have stated that you were not being paid benefits during this time.
	Therefore because you were a minor and not receiving benefits during the “preclusion period”, there should be no repayment. 
	Future eligibility 
	The lump sum of compensation in itself is not considered to be “income”. 
	However, what you do with the lump sum may be taken into account as part of Centrelink’s “income and asset test” to determine future eligibility for payments. 
	Upon receipt of settlement monies, you will have to contact your local Centrelink office. You may wish to obtain advice from a qualified financial practitioner in this regard. 
326	Mr Ure then provided instructions to accept the offer made by the Christian Brothers.
327	On 28 October 2015, Ms Zelez wrote to Mr Ure by way of email, advising him that Centrelink had confirmed there was to be no repayment of Centrelink benefits out of the settlement sum.
328	I make the following observations as to the extracts from the Ure file. The communications between Ms Zelez and DHS demonstrates that it was likely that no DHS repayment was required in an institutional abuse claim of a student who was a minor at the time of the abuse. This, as Ms Zelez’s memorandum states, is because of the manner in which the preclusion period was calculated. This accords with the evidence of Dr Morrison as to DHS recovery and the relevant preclusion period. 
329	The contents of the Ure file also demonstrate that it is both possible and practical to obtain advice from officers of the DHS as to the prospect of repayment — as is well known by those who practice in the area. Whilst their advice is always expressed contingently, as Ms Zelez noted, as it has transpired in Mr Ure’s case, the original estimate as to no repayment was confirmed.
330	There is no explanation as to why Ms Zelez did not carry out a similar exercise in relation to Mr Pearce’s potential DHS repayment — as Dr Waller had described in Mr Ure’s claim. The failure of Waller Legal to call her to give evidence reinforces the inference that such an exercise could have been undertaken in Mr Pearce’s case. 
John Negri
331	Mr Negri did not give evidence but extracts from his Waller Legal file were tendered. Waller Legal acted for Mr Negri in relation to a claim against MSC for abuse perpetrated by Brother Mamo at whilst Mr Negri was a boarding student at Monivae in 1980–1981. It appears that Ms Zelez managed Mr Negri’s claim. 
332	Waller Legal briefed Ms Anita Spitzer of counsel to represent Mr Negri at an ISC with MSC in relation to his claim on 19 April 2016, about six months prior to Mr Pearce’s ISC.
333	The memorandum to Ms Spitzer dated 17 April 2016 noted that Mr Negri had not instructed Waller Legal to pursue a formal loss of earnings claim. The memorandum stated that the abuse Mr Negri suffered impacted upon his education and work opportunities and suggested that counsel may consider seeking a ‘nominal figure’ for this loss ‘on a Farlow type argument – Stevedoring v Farlow (1963) VR 594’.
334	In the memorandum to counsel, Waller Legal noted correspondence from the solicitors for MSC (Carroll & O’Dea Lawyers) dated 9 February 2015 which stated:
	In John’s matter, via letter dated 9 February 2015 (see Tab 4), Carroll & O’Dea Lawyers have indicated as follows:
	— The identity of the entities to be named as defendants in this matter are:
	1. Trustees of the MSC;
2.  The Corporation of the Society of the MSC.
335	As to liability, the memorandum noted the following:
	Liability argument
	Given the contemporaneous complaints made to Monivae staff and the number of complaints arising from Monivae, it is our view that it could be argued that the MSC were on notice of Mamo’s inappropriate conduct with students and/or that they should have been.
	Further, given that the abuse was generally carried out by Mamo under the guise of discipline in his role as teacher, we refer you to the High Court case of New South Wales v Lepore and Another (S108 of 2002) (2003) 195 ALR 412 in regard to vicarious liability.
336	The basis for that opinion was set out in detail in the memorandum and included 15 complaints relating to Brother Mamo at Monivae College in the relevant period, suspicions of knowledge in MSC’s leadership, and the criminal prosecution and conviction of Brother Mamo. There was also information about complaints made about Brother Mamo prior to and subsequent to his time at Monivae and a lack of clarity around why Brother Mamo was transferred to Monivae. 
337	The Council public statements were also included in both briefs.
338	Mr Negri’s claim resolved for $75,000 inclusive of costs on 31 May 2016. The deed of release — parts of which are set out below — listed Mr Negri and three other entities as parties, being the Trustees of the Missionaries of the Sacred Heart (‘the Trustees’), the Corporation of the Society of the Missionaries of the Sacred Heart (‘the Corporation’), and Father Mulrooney.
	BETWEEN:	JOHN MICHAEL NEGRI
	c/- Waller Legal (Releasor)
AND:	THE TRUSTEES OF THE MISSIONARIES OF THE SACRED HEART
a body corporate under the Roman Catholic Church Communities Lands Act 1942 (NSW) of 1A Waltham Street Coogee in the State of New South Wales (First Body Corporate).
AND:	THE CORPORATION OF THE SOCIETY OF THE MISSIONARIES OF THE SACRED HEART
a body corporate under the Corporations (Victoria) Act 1980 and / or equivalent Commonwealth and State Legislation of 1A Waltham Street Coogee in the State of New South Wales (Second Body Corporate).
AND:	FATHER JOHN MULROONEY
in his capacity as Provincial of the Corporation of the Society of the Missionaries of the Sacred Heart, an incorporated association of 1A Waltham Street Coogee New South Wales (Institute).
	BACKGROUND
	…
2.	The Accused was at all times a member of the Institute and/or worked at the School.
3.	At all times the School was run by the First and / or Second Body Corporate and/or the Institute
4.	The School has been conducted by Monivae College Limited (‘Monivae”) since approximately 1995.
	…
6.	The Institute and the First and / or Second Body Corporate recognise their pastoral obligations towards the Releasor but do not admit they are legally liable for the loss and damage claimed.
	…
9.	The Releasor agrees to accept the Agreed Sum in full satisfaction and discharge of any claim he may have against the First and Second Body Corporate, the Institute, the Accused any servant or agent of the Institute or any of them arising out of the Claims.
	…
	OPERATIVE PART
	…
2.	The Releasor for himself, his executors, administrators and heirs assigns releases and discharges, the First and Second Body Corporate, the Institute, the Accused, any servant or agent of the Institute and any of them from all actions, suits, claims and demands of every description, which he now has or might have, has had or, which could afterwards be asserted, made or brought by him or on his behalf or through him either at law or at equity, or under the provisions of any Statute arising out of all or any of the acts, facts and circumstances constituted by the Claims.
	…
7.	The Releasor acknowledges that the payment made by the Second Body Corporate is partly made by virtue of the fact that the persons alleged by the Releasor to have caused him the loss and damage, the subject of the claims, were members of the Institute at all relevant times.
	…
9.	 The Releasor covenants and agrees that he will take no action against:
(a)	the First Body Corporate;
(b)	the Second Body Corporate;
(c)	Monivae;
(d)	the Institute;
(e)	the Accused — Br Edward Mamo;
(f)	any servant or agent of the Institute
(g)	the estate of any servant or agent of the Institute; or
(h)	any of them in respect of the Claims.
	…
12.	For the purposes of this Deed:
(a)	the "Institute" means and includes past, present and future members of the Institute; and
(b)	the "Releasor" means and includes any trustee, guardian or personal representative of the Releasor.
(c)	“Monivae” includes the Principal of the School for the time being, any current or past Staff, servants, agents, directors and board members of Monivae. 
339	The deed is signed by Mr Negri and Father Mulrooney personally, and by the Trustees and the Corporation by affixation of the common seal of the relevant body corporate pursuant to a resolution passed at a meeting of the body corporate in the presence of the provincial, a member of the body corporate and of two other members of the body corporate, all of whose signatures are also affixed. 
340	 The settlement of Mr Negri’s case in May 2016 and the contents of the Negri settlement deed demonstrate that Waller Legal was provided with the names of entities or persons who could be sued, and subsequently the settlement deed was executed with those organisations as parties to it.
341	In addition, the Corporation and the Trustees both admitted in the Negri settlement deed that Monivae was run by one or other or both. 
Ms Natasha Savic’s affidavit  
342	At the conclusion of the trial, there was some unfinished business in relation to a couple of evidentiary matters. One related to the proposed tender by Mr Pearce of an affidavit of Ms Savic of 12 August 2022. Ms Savic was a claims officer at CCI between August 2014 and July 2018. She swore two affidavits relevant to the setting aside application which were filed on behalf of MSC. Mr Pearce sought to rely upon the contents of her affidavit sworn on 12 August 2022 and her file note exhibited to it — which goes to the question of the instructions given by CCI to its lawyers in relation to the Ellis defence. And the conduct of his ISC which she attended.
343	Mr Pearce did not propose to not call Ms Savic. The tender of the affidavit was opposed by Waller Legal on one ground only — that it should be excluded pursuant to s 135(a) of the Evidence Act 2008 on the basis that the inability to cross-examine Ms Savic created the danger of unfair prejudice that significantly outweighed the probative value of the contents of the affidavit.
344	In a recent New South Wales Court of Appeal decision in DPP (Cth) v Dougas, Bell P (Beech-Jones CJ at CL and N Adams J agreeing) said as follows:
	The inability to cross-examine the maker of a statement or the author of a document may also be a source of prejudice to a party, but the analysis of whether it amounts to unfair prejudice, and whether any such unfair prejudice outweighs the probative value of the evidence in any given case, is a more nuanced exercise. As Wood CJ at CL observed twenty years ago in R v Suteski, ‘the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive’ of the issue presented by both of ss 135 and 137 of the Evidence Act. Those provisions call for an analysis of the character of the evidence involved and of the nature or strength of the potential prejudice to the accused.
345	It is unquestionable that Ms Savic’s evidence is highly relevant to the question of the approach of MSC and CCI as to the use of the Ellis defence in late 2016 and early 2017. This is a central issue in the trial. On the other hand, there is a significant (indeed, enormous) forensic disadvantage to Waller Legal by admitting it without it being able to test the reliability of Ms Savic’s evidence, particularly relating to CCI’s approach to negotiations in Mr Pearce’s claim — including at the ISC and subsequently.
346	This is an issue that is at the heart of the case. It seems to me that the danger of unfair prejudice arising by reason of Waller Legal being unable to test the quality of Ms Savic’s testimony is so significant that it substantially outweighs its clear probative value. Accordingly, I refuse to admit the affidavit in accordance with s 135(a) of the Evidence Act.
Evidence of Dr Waller
347	Dr Waller has practised in the common law since 1992. She worked at Slater & Gordon and Maurice Blackburn prior to setting up her own firm, Waller Legal, in 2007. Dr Waller’s doctorate was in tort law and, more particularly, in relation to psychiatric injury and difficulties in progressing child abuse claims.
348	She has, for much of her career, specialised in institutional abuse litigation on behalf of plaintiffs. By 2015 she had considerable experience in the bringing of claims against members of the Catholic clergy (members of religious orders, diocesan priests, etc).
349	In 2016 and 2017, Dr Waller was the sole principal of Waller Legal. There were two other solicitors (one being Ms Zelez) assisted by administrative staff, accounting and business management staff — with a total staff of around 20. Firm meetings were held once a week in which current cases were discussed. In addition, she had a regular open time slot in her diary for an hour or so dedicated to one-on-one meetings with her solicitors, as well as other shorter opportunities for such discussions.
350	It might be recalled that Dr Waller had no independent recollection of Mr Pearce as a client, nor of the discussions that she had with Ms Zelez in January 2017 and the telephone conference with Mr Pearce on 13 January 2017.However, she was able to give evidence of her understanding of the challenges in bringing a common law claim against MSC in 2016–2017 and the manner in which Waller Legal approached the preparation and resolution of such cases and particularly that of the economic loss component.
351	Dr Waller gave evidence that Waller Legal did not ever commence common law claims against individual perpetrators because of potential difficulties with impecuniosity, the absence of insurance, joint ownership of property, not being able to determine whether individuals had assets other than property, and such assets being easily disposed of to avoid enforcement even in the event of a successful claim. She said at the time she did not think she had ever sued solely a perpetrator but rather as an extra party to a proceeding against an institution capable of being sued.
352	In respect of non-perpetrators or institutions, Dr Waller explained that Catholic orphanages or schools which were often operated by a religious order that was unincorporated and did not form part of an archdiocese and therefore was not answerable to a diocesan bishop. She said that, in her experience, a religious school, in all likelihood, was run by an unincorporated association that could not be named as a defendant. Dr Waller said that MSC was an order created by papal decree, as she understood it, and comprised both priests and brothers.
353	The decision in Ellis, she noted, simply confirmed the difficulties in suing a current bishop or archbishop of a diocese for acts or omissions of a former archbishop in respect of abuse perpetrated by a priest in that diocese. Dr Waller agreed that her firm had told Mr Pearce that the Ellis defence was a serious problem. In fact, Dr Waller regarded the Ellis defence as being the ‘biggest problem’ in pursuing Mr Pearce’s claim for economic loss and that, absent the Ellis issue, she did not think ‘there was anything that would have prevented an economic loss claim being put on a formal basis’.
354	Dr Waller accepted that at times prior to January 2017, lawyers acting for various Catholic institutions had provided an entity to be sued. However, she went on to say:
	Well, in these – in cases involving an institution that was an incorporated association, Waller Legal would often make requests of defendants for an entity to sue on behalf of whoever it was that ran the school or orphanage. We were never offered an entity on behalf of. We were provided with information about defendants who would respond to claims, so that might be provided with information about who the individual principal was or who the individual provincial of the order was and whether they were dead or alive. But they never offered anything that would have cured the difficulties illustrated in the Ellis decision.
355	In cross-examination, she explained the Ellis difficulties as follows:
Q:	Dr Waller, I suggest to you that if Mr Pearce’s case had been issued against the Missionaries of the Sacred Heart or the Corporation of the Society of the Missionaries of the Sacred Heart in February 2017, in your experience it is highly likely it still would have been on foot as at 1 July 2018. Do you agree with that?
A:	But there was no basis to issue his claim, Mr Hammond. There was [no] defendant against whom pleadings would properly be made out.
356	Subsequently again in cross-examination, Dr Waller gave the following answers:
Q:	Your view, wasn’t it, Dr Waller that at the time upon which Mr Pearce resolved his case, there was no way to overcome the Ellis defence, is that correct?
A:	The only way to overcome it – not, no, not as a question of law. It would rely on a concession from the defendant. But as a question of legal fact, no.
357	In evaluating a common law claim in the context an unincorporated association running a school, assuming that there was a cogent account of abuse, Dr Waller said that it was then necessary to look for an individual who had responsibility for the student, for example a principal or teacher, and for evidence to be able to plead out a case in terms of foreseeability and breach against that individual who had a duty of care to the client and who had capacity to control the school environment and presumably the alleged offender. In the absence of an entity that could be sued which ran the school, it was necessary to endeavour to identify an individual who ‘might’ve been in control of the institution’, for example principals and provincials, or a superintendent of an orphanage or children’s home’. 
358	Dr Waller considered that the 2018 legislation ‘changed the prospects considerably for the better’ for suing church bodies, as it ‘introduced a mechanism whereby unincorporated associations could be made to identify a defendant to be sued on behalf of the unincorporated association’. This ‘made it much easier to plead a cause of action because any knowledge of anybody in the unincorporated association now had become aggregated… to that organisation’.
359	Dr Waller also identified other problems facing plaintiffs issuing institutional abuse claims, such as the risk of an application by the defendant for a permanent stay of the proceeding and, so she contended, the application of the provisions of the Wrongs Act 1958 in establishing that a client had sustained a significant injury within the meaning of that Act.
360	Dr Waller highlighted the difference between dealing with claims against certain incorporated religious orders which were handled by private lawyers as opposed to those handled by lawyers instructed by the CCI. She said that she was aware that CCI was involved because ‘mostly’ Mr Patrick Monahan, a senior partner at CBP, would handle the defence of the claim. 
361	Dr Waller said that ‘dealings with CCI were much more difficult’ than when dealing with a religious order direct. 
362	The discussion that appears to have underpinned Dr Waller’s conviction that CBP would take every point (including the Ellis defence) in defending claims against MSC occurred at an unspecified time at a meeting with Mr Monahan. 
363	The date or place of the discussion was not identified, but its substance was in the following terms:
Q:	Now, Dr Waller, being precise, not non-precise, as a result of what you and Mr Monahan discussed and nothing else, by December 2016 what was your understanding of the approach the Missionaries would adopt in respect of your clients who had claims against schools or religious orders associated with them?
A:	My understanding of those conversations with Mr Monahan was that the – any instructions from the insured, so the Missionaries, had to be approved by CCI and also by the reinsurer, and that there was no way known that the insured – that instructions to waive Ellis in any way would be approved by the insurer. Um and so I understood that any indication that may have been given from time to time in relation to how they might respond to claims – um that it was, in reality, the insurer who had complete control over the way those defences were run and that the insurer – the insured would never be allowed to do anything that might jeopardise the position of the insurer.
364	Then, when cross-examined on this point, Dr Waller said as follows:
Q:	Dr Waller, did you ever ask the Missionaries in relation to Mr Pearce’s claim – and I’m just talking about Mr Pearce’s claim – did you ever ask the Missionaries of the Sacred Heart, in Mr Pearce’s claim, whether they would rely on the Ellis defence?
	A:	It had already been made clear to me.
Q:	Did you ever ask the Missionaries where they would rely on the Ellis defence?
A:	No, because they’d already made it clear.
Then I intervened:
Q:	Sorry, just so I’m clear, how have they already made it clear?
A:	Because I had had a number of dealings with Mr Patrick Monahan from Colin Biggers & Paisley, who represented, in Mr Pearce’s matter, both the insurance company – CCI – and the insured – the Missionaries of the Sacred Heart – and he had made it blisteringly clear in those discussions that they didn’t – CCI didn’t care what the insured had said in relation to Ellis. They – their instructions had to be accepted and approved by Catholic Church Insurance, and there was no way known that the insurer or the re-insurer would jeopardise their position in relation to Ellis. And I found that the Catholic defendants around this time were very reluctant to put their positions in writing, because they were the recipient of some attention they found very uncomfortable, by the Royal Commission. And so, often, I would be summonsed to discuss a group of claims I had. And in 2014, Patrick Monahan made it very clear to me that CCI would not – they didn’t care what unincorporated religious associations said about Ellis, that the insured would not be permitted to jeopardise the position of the insurer or the re-insurer.
Q:	Were those discussions with Monahan before the Truth, Healing and Justice statements?
A:	Yes, and after.
Q:	So when was the last discussion with Mr Monahan that they would take this point?
A:	That’s an interesting question. I know the first – the first time it became very clear was when we were attempting to negotiate some Christian Brother matters, including Mr [Ure]’s claim. There was a momentary period of hopefulness there, where it seemed like we could proceed with those matters by way of common law assessment. But during those first settlement conferences in relation to the Christian Brothers, CCI made it very, very clear they were taking all the defences. And that position was never retracted, and was never retracted after the Truth, Justice and Healing indication in 2015, and it was never retracted after the guidelines came into effect. And the content of those guidelines shifted from early indications they wouldn’t rely on Ellis to quite specific indications that they would assist in identifying an entity to sue. Never, at any time, did they give an entity to sue on behalf of the unincorporated association that ran the relevant institution. So it’s more a question of, this position was put extremely firmly by CCI on a number of occasions, and never retracted.
365	When pressed in cross-examination as to the date of this discussion or discussions with Mr Monahan, Dr Waller said that in respect of MSC they were in 2014 and predated the Council public statements and the second reading speech of the Attorney General as to parliament’s intention to legislate about Ellis. In relation to the Christian Brothers, such discussions occurred from a period of time from 2011. Dr Waller accepted that there were no notes of these discussions and no letters or correspondence from Mr Monahan at any time in relation to taking the Ellis defence.
366	Dr Waller agreed that Mr Pearce had no knowledge of any discussion with Mr Monahan.
367	I also asked Dr Waller about the fact that the Calderbank offer in Mr Pearce’s case solely addressed quantum and made no mention of the Ellis defence (or for that matter any liability issue):
Q:	It doesn’t convey to the plaintiff anything about, there are problems with Ellis. Presumably, it was written on the instructions of MSC and CCI, and it doesn’t say a word about it?
A:	No. My understanding of that time is, these very strong representations that every defence will be taken were made to me personally in meetings by Patrick Monahan at CCI, and he was acting on behalf of both the insurer and the MSC. My recollection of that period of time, Your Honour, is that because these Catholic entities were copping a lot of intense attention in the Royal Commission, they were extremely reluctant – and in fact, I don’t think they ever did commit their true position on Ellis in writing. What we have in writing is an indication that, ‘They’ll help you to identify the correct defendant to sue’, which in most cases was an individual provincial or principal, so such a case was only viable if you had – if that individual was responsible for the alleged offender, and there was some indication of knowledge to help to establish breach. The giving of a trustee – a property trust, as pleaded in that statement of claim Mr Hammond showed me, is not a suitable sustainable, pleading because under the operation of the Land Act, those kinds of corporations only have powers to deal with questions relating to the dealing and transfer of property, real and personal. They’re not responsible for the running of a school.
368	The statement of claim to which Dr Waller was referring was a claim issued by Porters Lawyers on 1 February 2017 which named the Corporation as the defendant and which by paragraph 2 stated ‘At all material times, the defendant appointed and had the control and supervision of those appointed to the Parish of St Gerard and St Anne, Park Orchards & Warrandyte’ — alleging it operated the parish at which the abuse of the altar boy issuing the claim, had occurred. After drawing Dr Waller’s attention to the signed proper basis certificate accompanying the statement of claim, Dr Waller maintained that the Corporation could not be named as a defendant in Mr Pearce’s case. 
369	Dr Waller was also cross-examined about the defendants named in the deed of settlement in Mr Negri’s claim.
370	Dr Waller accepted that Mr Negri’s claim, similar to that of Mr Pearce, arose out of abuse by Brother Mamo at Monivae. She also agreed that MSC had provided the identity of three entities who could be named as defendants in that case: the Trustees, the Corporation (both body corporates) and Father Mulrooney. She then gave the following answers in cross-examination in relation to the Negri settlement deed:
Q:	And you’ll see at clause 3 there, ‘At all times, the school was run by the first and/or second body corporate and/or the institute’. Do you see that there?
A:	I do.
Q:	So would you agree with me that the deed confirms that as at the time of this abuse in 1980 and that The Corporation of the Society of the Missionaries of the Sacred Heart were one of the bodies that ran the school. You’d agree with that?
A:	No. I do not.
Q:	I’m asking you whether that’s what the deed says?
A:	That’s what the deed says.
Q:	Thank you. And this is a deed signed by The Corporation of the Society of the Missionaries of the Sacred Heart. That’s at the document court book p 3149. Do you see that there?
A:	Yes.
Q:	And in terms of who paid the compensation sum in this matter, if I can ask you to turn the page to court book p 3145, you’ll see at clause 8 it’s the second body corporate agrees to pay a lump sum of $75,000 inclusive of costs and disbursements. You see that? 
A:	Yes.
371	Then there were the following questions:
Q:	Dr Waller, I suggest to you that you could have recommended to Mr Pearce, in relation to his case, that he could proceed by issuing proceedings in the Supreme Court against the Corporation of the Society of the Missionaries of the Sacred Heart. Do you agree with that? 
A:	No I don’t.
Q:	Did your firm at any time tell Mr Pearce that you expected the missionaries would offer indemnified entities to sue?
A:	CCI had made it clear their approach, and Mr Pearce’s matter was run by CCI.
Q:	So is that no?
A:	Can you ask me the again? I'm sorry, Mr Hammond.  
Q:	Sure. Did your firm at any time tell Mr Pearce that you expected the missionaries would offer indemnified defendants to sue?
A:	 I don’t think that’s indicated on the file.
Q:	So that’s no?
A:	Unless it’s indicated to the contrary on the file, I accept your proposition.
Q:	Do you agree that you should have?
A:	No.
Q:	You agree that you told him about the Ellis defence being a serious problem?
A:	Yes.
372	Dr Waller also explained Waller Legal’s approach to economic loss claims. She described an ‘informal’ economic loss claim on behalf of a client as follows:
	It is based on Malec v Hutton or a Farlow type claim, where the court in – in those cases made an allowance for the loss of opportunity.
373	She went on to say:
	They’re dealing with the kind of concept that loss is somehow – loss that is in some – to some extent hypothetical, one way of dealing with that, particularly if there are evidentiary concerns, is for the court to make an allowance for the loss of opportunity that – that things would’ve worked out in terms of the hypothetical scenario’ 
374	Dr Waller differentiated this type of claim from a ‘formal’ economic loss claim which required working out ‘in a detailed way, involving obtaining and accessing relevant, employment, financial and Centrelink records’ and an expert report. She said that for each new client an ‘initial’ decision had to be made by her firm as to whether the client’s claim would be for ‘formal’ or ‘informal’ economic loss. She said that the term ‘informal economic loss claim’ was used when dealing with CBP and she believed they understood what was meant by it.
375	Dr Waller said that the decision as to whether to make a formal or informal claim could be influenced by whether it was possible to litigate a common law claim and timing, describing earlier ‘bad experiences’ with working up loss of earnings claims for use in what she described ‘loosely’ as a mediation process with CCI using an independent mediator to make a common law assessment of damages — the result of such conferences being ‘global sums’ which were ‘significantly compromised’ and her realisation that CCI ‘would take every defence’. 
376	Dr Waller said that ‘sometimes’ a formal economic loss claim was worked up even when she did not consider there to be a cause of action available, in circumstances where it became apparent through the conduct of the file that it was possible to litigate (i.e. some evidence of breach referable to a person who owed the plaintiff a duty of care was found) or the client’s instructions had changed.
377	Dr Waller, in cross-examination, accepted that there was nothing that would have prevented an economic loss claim being put ‘on a formal basis’. Dr Waller explained the negative cost consequences of working up a formal claim which did not result in ‘any kind of significant increase in benefit to the client’ in the context of offers made on an all-inclusive basis, and the risk, in circumstances when they were unable to litigate, that the defendant would disengage if they went in with a million dollar loss of earnings claim. She observed that obtaining an actuarial report could result in incurring a cost of between $7,000 to $10,000. 
378	Dr Waller agreed that Mr Pearce was never given advice as to the potential quantum of his common law claim ‘because he didn’t have one’. She said the indication given to Mr Pearce as recorded in the 13 January 2017 file note, that past claims against Brother Mamo had settled for between $75,000 to $150,000, was ‘relevant in circumstances where the only avenue was via some sort of ADR process that relied on the good grace of the unincorporated association’ and that was what they had ‘managed to achieve for others in that situation’.
379	Dr Waller said that during her time as principal of Waller Legal, and up until January 2017, 100% of her cases settled before verdict ‘because most of [her] matters were against unincorporated associations’ and that ‘it would have been impossible for [Mr Pearce] to advance his claim to court’.
380	When cross-examined as to Mr Pearce’s evidence that he had never instructed Waller Legal not to make a loss of earnings claim, Dr Waller said as follows. 
Q:	Do you accept that there is no evidence on this file to indicate that Mr Pearce gave you instructions not to pursue an economic loss claim?
	A:	I agree.
Q:	And I would suggest to you that he did not give you instructions in relation to not pursuing an economic loss claim?
	A:	I would agree.
	Q:	You agree with that?
	A:	Yeah.
381	Dr Waller also accepted that given there was no formal loss of earnings assessment undertaken, it followed that there was no evidence on Mr Pearce’s file of him ‘ever having been told what the what overall amount would have been put for a formal loss of earnings claim if it had been put’.
382	As to the question of potential DHS repayment by Mr Pearce, Waller Legal’s amended defence read as follows:
	if the Plaintiff had included a claim for economic loss in his settlement with MSC, he was liable to have to repay half of the settlement sum to Centrelink, which would have resulted in the Plaintiff receiving a lower amount of money.
	PARTICULARS
	Mr Seccull’s view on the impact of including an economic loss claim on the Plaintiff's Centrelink entitlements and possible repayment to Centrelink was discussed with the Plaintiff during a pre-settlement conference meeting on 22 November 2016.
	…
	The Defendant denies paragraph 37A, and says further that if (which is denied) the Centrelink Advice constituted a representation for the purposes of the Australian Consumer Law: 
(a)	it was a representation as to a future matter and the Defendant had reasonable grounds for making the representation; and 
(b)	accordingly, the representation was not misleading or deceptive in contravention of the Australian Consumer Law.
383	Dr Waller had, prior to trial, also given this further answer to an interrogatory: 
	I say further that as at the date of counsel’s advice on 22 November 2016:
(a)	Centrelink had not provided definitive guidance as to when the preclusion period would start to run in abuse cases; 
(b)	Centrelink were unable to provide any guaranteed position in a particular case about possible repayment or the operation of the preclusion period until a matter had formally settled; and 
(c)	There was therefore a real possibility that if the Plaintiff received a lump sum payment which included an amount for loss or [sic] past or future wages, Centrelink would apply a preclusion period and/or seek repayment of previous benefits. 
384	During cross-examination about Waller Legal’s amended defence, her answer to the interrogatory and the advice given by Waller Legal to Mr Ure regarding Centrelink preclusion periods (which in his case resulted in nil repayment), Dr Waller conceded that it was unlikely that Mr Pearce would have had to pay any amount of Centrelink payments:
Q:	So I’d suggest to you that the first record of Mr Pearce receiving any Centrelink was approximately May 1991. And so if you just do the maths, that’s about 15 years after the abuse; would you accept that?
A:	Yes.
Q:	So following that, in Mr Pearce’s case, he would need a preclusion period for him to be more than 15 years to be at risk of paying anything back to Centrelink; would you accept that?
A:	Yes, if Centrelink went about it in the usual way.
…
Q:	So on your understanding of Centrelink’s usual practice Dr Waller, if Mr Seccull had advised Mr Pearce, at the time of the conference, that if he claimed economic loss, he might lose up to half of his total of his compensation sum, that advice would have been wrong, applying Centrelink’s usual formula; would you agree with that?
	A:	Yes.
385	I make the following observations in relation to Dr Waller’s evidence (which I will expand upon when I come to deal with the allegations of negligence).
386	First, whilst in the main I regard Dr Waller as a credible witness, she was, in my opinion, extraordinarily defensive in relation to her firm’s approach to litigation against MSC — and its handling of Mr Pearce’s claim. For reasons that I will expand upon later, I find it difficult to accept that she could have entertained her view as to the impenetrable obstacle posed by the Ellis defence in late 2016 and early 2017 in respect of institutional abuse claims against MSC — particularly so in relation to Mr Pearce’s claim, given the manner in which the MSC defence was conducted.
387	Second, my view as to her reluctance to make reasonable concessions finds support in the evidence relating to DHS repayments. Both the amended defence and her answers to interrogatories raised this issue as a real possibility counting against Mr Pearce pursuing an economic loss claim. Ultimately, in cross-examination Dr Waller resiled from this position. Any considered examination of other Waller Legal claims (such as that of Mr Ure) or, indeed, an understanding of general Centrelink practices would have rendered the suggestion that it was a real risk untenable in the context of Mr Pearce’s claim (and for that matter, in the context of most claims by young or teenage children).
388	Counsel for Waller Legal argued that I should find that Dr Waller deliberately misled the Court as to her belief as to the likelihood of having to make DHS repayments: as set out in Waller Legal’s amended defence and Dr Waller’s answer to interrogatory 11. For my part, I think that these statements (which she ultimately concluded were wrong) are simply another illustration of Dr Waller’s defensive approach to any attack on her firm’s reputation and professional standards — one that she was prepared to maintain notwithstanding overwhelming evidence to the contrary.
389	Third, Dr Waller’s evidence as to the distinction between formal and informal economic loss claims was illogical. Her explanation that in some way a Malec v JC Hutton Pty Ltd economic loss claim can be included within a general damages claim lacks any legal foundation — as Dr Morrison explained.
390	I will return to several of these points when dealing with the allegations of negligence against Waller Legal.
Expert Evidence — Dr Morrison KC, the barrister
391	Dr Morrison was engaged by Mr Pearce’s lawyers. He is a highly experienced litigation barrister with vast experience in conducting common law claims on behalf of injured plaintiffs. He is a past president of the Australian Lawyers Alliance and is the national spokesperson for the Alliance in respect of institutional child sexual abuse. He made submissions on behalf of the Alliance before the Ipp Inquiry and gave evidence at the Royal Commission. He is co-author and editor of the Personal Injury Law Manual NSW. He has not practiced in this state apart from appearing as junior counsel for a defendant in a trial some thirty one years ago. 
392	Dr Morrison was provided with a raft of material, including the pleadings, the Waller Legal file, medical reports, the report of the accountant Mr Thompson, the decision of Forbes J in the setting aside application, and the transcript of Dr Waller and Mr Pearce’s evidence at trial.
First report
In his report dated 22 February 2024, Dr Morrison noted that it was alleged that Mr Pearce was ‘highly intelligent and motivated prior to the abuse with positive reports and grades but subsequently misbehaved and was ultimately expelled’. 
393	Dr Morrison noted that he acted in a successful sexual abuse case against the Catholic Church in the years prior to Ellis and rejected the suggestion that such a claim was not possible for Mr Pearce to advance in 2017. 
394	Dr Morrison said that it was ‘curious that Waller Legal consistently assert that they are not instructed to formally claim loss of earning rather than they are instructed not to claim loss of earnings’. And that ‘this may imply that the client continues to assert loss of income consequent upon the abuse but has not given instructions contrary to the advice not to pursue such a claim’. As to the file note from Ms Zelez on 22 November 2016, which included the assertion that economic loss was ‘more trouble than its worth’ and stated that the claim for loss of income and failure to finish school could be claimed as part of general damages, he opined that it is unclear how such a claim can be made at law and the amount settled for could ‘hardly be said to have made any allowance of significance for diminution in economic capacity’.
395	More generally, as to Waller Legal’s approach to the economic loss claims as part of general damages, Dr Morrison said as follows: 
	The notion that you can include a claim in general damages for loss of opportunity as an alternative is also nonsense. The plaintiff’s loss of a career or damage to their ability to earn may increase general damages or damages for non-economic loss by way of pain and suffering but this is available in any event and is not compensation for economic loss past or future. I have seen literally dozens of cases over the years involving multi million-dollar sums in respect of children who could never provide the sort of information being asked for by Waller Legal. The advice been given in that letter which in substance accords with the advice I am instructed was given to Gary Pearce is frankly inappropriate and wrong in law.
396	Dr Morrison also observed that the total amount the claim settled for ‘can hardly be said to have made any allowance of significance for diminution of economic capacity.’ He thought it ‘strange’ that Mr Pearce was not advised to commence proceedings and said that the commencement of a proceeding generally attracts a better offer. He contrasted the total settlement of $540,000 plus costs after a proceeding was commenced (after the setting aside application was partially successful and excluding economic loss), with the settlement of $140,000 in the claim handled by Waller Legal. He acknowledged that while there was the possibility that the matter would have proceeded to a hearing, the overwhelming majority of cases settle after proceedings have been commenced. 
397	In respect of the economic loss report prepared by Mr Thompson, Dr Morrison was of the view that (on Mr Thompson’s calculations) a figure in excess of $1 million plus superannuation and indexation, may have been ‘very much on the optimistic side’. However, he opined that even using the lower rate of average earnings for those not tertiary educated and even after substantial reductions for the ordinary vicissitudes of life and for the uncertainties of calculation where inadequate records are available, ‘clearly very substantial sums are involved’ and that the value of his past loss would have exceeded $500,000 plus superannuation and indexation based on a calculation of average weekly earnings. He noted that future economic loss and superannuation would also have attracted a further entitlement. None of these calculations appeared to have been performed by Waller Legal. 
398	Dr Morrison considered that the advantages of making an economic loss claim greatly outweighed the disadvantages.
399	He stated that in calculating economic loss, obtaining a forensic accountant’s report should have been a clear starting point for Waller Legal. He said that in order to prepare such a claim, it would have been appropriate to contact and take statements from Mr Pearce’s past employers and to obtain tax records. He said that Mr Pearce’s medical expert should have been advised to comment on the defendant’s expert report, further medico-legal evidence could and should also have been sought, and noted that the subsequent reports of Dr Jager and Dr Tagkalidis would have been ‘very powerful in settlement discussions’. He considered that the GP notes and reports and the reports of Dr Triggs, Dr Jager, Dr Tagkalidis, Dr O’Brien, and that of Ms Whetton were ‘potentially of considerable value in settlement negotiations’. He said psychological testing on IQ would be useful. 
400	Dr Morrison acknowledged the competing opinions in the expert reports of Dr Neill and Dr Triggs, however noted the principles affirmed by the High Court in Shorey v PT Ltd, Watts v Rake and Purkess v Crittenden, which he suggested imposed ‘very high standards of proof on a defendant to establish not merely that the present disability would have been suffered in any event but also to establish exactly when it would have occurred’. He did not consider that Dr Neill’s opinion necessarily excluded the Monivae abuse as a cause of his psychological condition and concluded that Dr Neill’s opinion itself would not suffice to avoid a finding of causation of economic loss. He thought that Dr Triggs should have been asked to respond to Dr Neil’s report before settlement negotiations. He said that the case would have proceeded to trial with more medical evidence than had emerged at the date of settlement and that Mr Pearce had ‘reasonable prospects of success on the medical issues’. 
401	Dr Morrison said that Mr Pearce’s failure to file tax returns during his working life was not a barrier to claiming economic loss, as he had regularly calculated past and future economic loss for those seriously injured as young children who had never entered the workforce. Dr Morrison said that average weekly earnings are a starting point for preparing such a claim and that Mr Pearce’s evidence supported, where possible, with statements from former fellow employees or former employers, as well as sibling and family, academic and work histories, may assist. He noted the likelihood that ‘uncertainty will lead to diminution in the size of the award but that it will still be a substantial one’ and that calculation of economic loss for injured children is ‘nothing novel’. 
402	Although Dr Morrison acknowledged that he is not an expert in Centrelink recovery, he stated that his understanding was that recovery does not apply to injuries prior to 1987 so therefore there would not have been any Centrelink recovery in Mr Pearce’s case. Dr Morrison noted that even when the Social Security Act 1991 (Cth), which permits recovery does apply, the 50% is merely a deeming provision in relation to how the calculation commences. Dr Morrison was of the view that even if Centrelink recovery did apply, given the length of time from the date of injury to the settlement of Mr Pearce’s claim, any such amount would have been trivial but in this case there could be no such claim. Accordingly, he did not agree with the opinion attributed to Mr Seccull in Ms Zelez’s note of the meeting on 22 November 2016, that claiming economic loss could be ‘more trouble than its worth’.  
403	In considering whether there were any significant barriers to success in a common law claim, as suggested in Waller Legal’s amended defence, Dr Morrison expressed the following opinions:
(a)	At the time of Mr Pearce’s settlement, Brother Mamo had already plead guilty to very similar accounts of abuse at schools run by MSC. Dr Morrison said that due to this, there should have been ‘no doubt’ in respect of Mr Pearce’s abuse having occurred. 
(b)	Vicarious liability would be established as the criteria of power, vulnerability, intimacy and opportunity set out in the test for vicarious liability in Prince Alfred College Incorporated v ADC ‘would clearly be met’. 
(c)	If Mr Pearce’s evidence that he complained of the abuse and was further punished for doing so was accepted, and given the history of MSC that seems likely, then negligence would follow in respect of the abuse by Brother Mamo. If any action had been taken to protect vulnerable individuals after that complaint then it is ‘less clear but certainly arguable’ that the abuse by Brother Frith may have been avoided. 
(d)	Dr Neill’s expert opinion does not exclude any injury, and on the face of it, applies the wrong test and it seemed more likely that Mr Pearce’s expert supported by his GP (and probably other medical evidence) would be preferred.
(e)	The absence of documented complaints could only affect the claim in negligence and not in vicarious liability. 
(f)	The grant of a stay seemed ‘most unlikely’ given Victorian Courts have been ‘the least keen in Australia to find extraordinary circumstances justifying a permanent stay of proceedings’.
(g)	MSC had provided an identity to sue in other cases, and Dr Morrison opined that he had ‘no doubt’ they also would have done so in Mr Pearce’s case had the matter ‘been pressed onwards’. He said that if necessary, a complaint to the Truth, Justice and Healing Council and/or Archbishop of Melbourne would have resulted in a defendant being identified and he knew of no cases in which the Church had been able to maintain the Ellis defence in Victoria since the joint announcement of the Archbishops of Melbourne and Sydney.
(h)	As to causation, while there may be issues with the attribution of Hepatitis C, suggestions of disjointed education and home life do not include any evidence of an affect upon the plaintiff’s functioning prior to the abuse and his problems appear, on the face of it, to date from the abuse and on present information ‘that seems to be the likely outcome’. 
404	Dr Morrison acknowledged that claims similar to Mr Pearce’s are challenging but, on balance, he was of the view that Mr Pearce would have been more likely to succeed in his claim than fail and there would ‘almost certainly’ have been an allowance for economic loss.  
405	The main issue would be the extent of injury and its attribution. He was of the opinion that Mr Pearce was ‘most likely to obtain far more substantial damages than he was advised to accept’ and ‘given the very substantial damages involved there would be a potential claim for economic loss well in excess of $1 million and even heavily discounted the likely outcome would be at the very least, many hundreds of thousands of dollars for past loss plus interest and superannuation and for future potential loss’.
406	As to what matters Mr Pearce should have been advised of prior to advising settlement for $140,000 in accordance with the practice of a reasonable lawyer at the time, Dr Morrison said the following:
(a)	a plaintiff is ‘overwhelmingly much more likely to get a higher sum if proceedings are commenced than if the case is settled with no action on foot’;
(b)	the potential cost and embarrassment of litigation significantly influences an organisation like MSC and its insurer;
(c)	even if Mr Pearce was unenthusiastic about going to trial and if there were concerns about how good a witness he would be, if a proceeding had been commenced, his legal team would have had much more authority at a settlement conference and it is likely that a ‘significantly better result’ would have been achieved;  
(d)	even if Mr Pearce did not wish to end up in court, the defendant would not know this; and
(e)	he could see no downside to claiming economic loss given it would force the defendant to ‘consider its risks in regard to this issue’. 
407	Ultimately, Dr Morrison was of the view that properly prepared, the advice given to Mr Pearce at that time should have been that he had a ‘reasonable prospect of success, and the offer would need to be a great deal higher than the nominal sum being proffered by way of settlement’.
408	Dr Morrison concluded his report by stating that Waller Legal’s ‘explanation for not making the claim for economic loss does not make sense and nor does the failure to commence proceedings to put additional pressure on the defendant’. In all of the circumstances, he considered that Waller Legal’s failure to properly advise Mr Pearce ‘amounted to serious professional misjudgement.’  
Supplementary Reports
409	Dr Morrison provided two further reports: a supplementary report (large parts of which were subsequently removed) dated 7 October 2024 which was primarily in response to a report of Waller Legal’s expert, a New South Wales solicitor, Mr John Ellis, who was not called, and a further supplementary report dated 6 December 2024.
410	In what remains in evidence of the 7 October 2024 report, Dr Morrison expressed the following opinions:
(a)	Mr Pearce reported his abuse to the rector/principal — there is less likelihood of a successful Ellis defence in respect of clergy holding such a position of authority. 
(b)	In respect of instructions that Waller Legal knew in 2013 from a client, Mr Schack, that he had been abused 10 years before Mr Pearce and had been informed that other boys had also reported abuse to the rector/principal who acknowledged such abuse but made light of it, Dr Morrison thought that this confirmed that Mr Pearce had a ‘strong case in vicarious liability and in negligence on information known to Waller Legal’. He opined that:
	Moreover, the plaintiff has the benefit in negligence of a conviction in respect of his abuse and Brother Mamo was convicted in respect of some 21 other offences involving other children. Most importantly, the plaintiff has said that after he was abused by Brother Mamo he complained to the Brother’s superior, the Rector/Principal who instead of investigating and protecting the plaintiff chose to punish him physically for his complaints. The Rector’s involvement in my view gives rise to a substantial degree of likelihood of an adverse finding against the defendant in both vicarious liability and in respect of negligence.
(c)	In his experience, ‘telling or indicating to the defendant/insurer that you will not litigate (and are not claiming economic loss) puts no pressure on the defendant or insurer to offer serious compensation’ and Mr Pearce’s case was an example of this.
(d)	The Waller Legal Past Settlements Catholic Past Settlements Chart was significant in that it would strengthen the claim in negligence and it ‘illustrates the pathetic level of compensation regarded as acceptable’. It ‘clearly indicates the practice of Waller Legal not to claim economic loss in these cases’. 
(e)	In the circumstances, he was ‘unable to agree that the conduct of Waller Legal was fair, proper or acceptable’ and was of the view that Mr Pearce ‘needed to know the true value of his economic claim before deciding on settlement’. 
(f)	In his experience ‘the overwhelming majority’ of proceedings settle before hearing and for ‘a great deal more money than would have been on offer unlitigated’. 
411	In the further supplementary report of 6 December 2024, Dr Morrison was asked to provide his opinion on two questions:
(a)	What would have been a reasonable settlement range for the economic loss (past and future, including superannuation) component of Mr Pearce’s claim had the matter reached a court-ordered mediation in mid-2018 (not taking into account interest)?
(b)	What was the likely court award for economic loss (past and future, including superannuation) component of Mr Pearce’s claim had the matter reached a verdict in late 2018 (not taking into account interest)? 
412	Dr Morrison gave the following answers:
	In my view and balancing positive and negative factors past economic loss would be valued on balance by a Court at about $660,000 with past superannuation at $65,000 in 2018. At a mediation it would be reasonable to accept a slightly lower figure by perhaps $65,000 for the benefits of certainty and an earlier finish to litigation. 
	In respect of future economic loss utilising average weekly earnings and discounting by a further 15% for the ordinary vicissitudes of life produces $466,300 with superannuation reduced to $54,305. It would reasonable to discount future economic and superannuation loss by say $40,000 for the advantages of earlier settlement in 2018. 
413	Dr Morrison noted the following:
(a)	The expert opinions, except for one of the defendant’s reports, ‘overwhelmingly attributed the plaintiff’s disabilities in regard to earning capacity including alcohol abuse to his original abuse as a child’. Dr Morrison was ‘strongly of the view that the opinions which include the defendant’s forensic psychiatrist, of a high degree of attribution, would prevail’. 
(b)	The lack of pre-injury educational records as to Mr Pearce’s academic and educational capacity should the injury not have occurred, was a ‘complicating factor’. In this regard, Dr Morrison concluded ‘it is possible but uncertain whether he had capacity for university, but it does seem at least likely that he was denied the opportunity for some form of tertiary education or training’ and this would ‘on the face of it, have resulted in a diminution of his earning capacity’. 
(c)	The element of uncertainty in respect of possible tertiary education ‘roughly offsets’ the uncertainty as to additional cash earnings. In reaching this view, Dr Morrison had regard to Mr Thompson’s third report of 17 October 2014 and stated that ‘[i]n broad terms, I would adhere to the forensic accountant’s figures for average weekly earnings and superannuation having regard to these offsetting factors’.
(d)	In respect of a mediation in 2018, he made no discount for liability in negligence whilst noting that vicarious liability may be precluded by Bird v DP (a pseudonym) although said ‘this case is somewhat different as it involves an educational institution conducted by the defendant’. 
(e)	He did not take into account any reduction for small percentages of other potential causes of injury (10% and 20%) as the decision of the High Court in Shorey v PT Ltd, Watts v Rake and Purkess v Crittenden lays down clear criteria set out in his first report and which the defendant has no prospect of meeting in order to get any discount. He concluded ‘the plaintiff has clearly established that the abuse was a cause (indeed an overwhelming cause) and the whole of the present condition is attributable according to the law as laid down in those three High Court decisions’. 
Oral evidence
414	Prior to giving evidence at the trial, Dr Morrison was provided with transcript of the evidence of Dr Waller and Mr Pearce.  
415	Dr Morrison said as to his experience with civil jury trials which he described as ‘extensive’, his first being in 1979 and during stints as an acting district court judge in New South Wales. When cross-examined as to his experience in such trials in Victoria he said that he had conducted one six-week civil jury trial as a junior shortly prior to being appointed silk in 1993. He agreed that had no experience of practice in Victorian courts in the last 31 years and that he was not purporting to describe practice in Victorian courts in his opinions. There was no evidence that he had ever practised as a solicitor, and his experience of Victorian practice was confined to providing case summaries of Victorian tort cases. 
416	In cross-examination, Dr Morrison accepted that for the purpose of a viable common law claim it was necessary to identify a defendant which was able to be sued in addition to the perpetrator of the abuse. He accepted that it was difficult to sue an unincorporated association but understood that MSC was incorporated under Victorian Law. He agreed that the problem of identifying an appropriate defendant was ‘an annoyance and a complication’ that could usually be cured by the nomination of an appropriate defendant, as recommended in the Council public statements.
417	Dr Morrison accepted that it was necessary to identify a defendant with assets behind it, and he understood that the MSC was both incorporated and had the capacity to pay.
418	Dr Morrison thought that the real question was not the legal status of a potential defendant, but rather the nomination of an appropriate entity by MSC, as required by the Council guidelines. He accepted that, absent nomination, it was impossible to plead a common law claim in January 2017 on behalf of Mr Pearce against entities or individuals other than the perpetrators.
419	When asked in cross-examination who he would name as a defendant in a hypothetical claim based on Mr Pearce’s case (but in circumstances where no complaint against Brother Mano had been made to the rector), he said: 
	I wouldn’t be suing anyone, other than the body that was nominated in accordance with the November 2015 requirements laid down for all church authorities… whoever was nominated would be the correct person or body to sue. 
420	As to whether it was the circumstance of being nominated that was relevant, or the assumption of responsibility by the nominated entity, he said:
	It’s not the question of responsibility by the nominated entity. It’s the question of whether the nominated entity represents the institution for the relevant purpose, and has assets behind them.
	…
	They are being nominated to assume someone else’s responsibility. Otherwise, church organisations could simply nominate all the organisations within the church, which had no possible responsibility for what had occurred, and yet they would be complying with the obligation to nominate a defendant, so they could evade responsibility by saying, nominating the trustees who own the property but don’t conduct the institution – no, that would make no sense whatsoever. And it certainly wouldn’t be compliant with the spirit of the May and November declarations which came out by way of guidelines.
421	When asked about Dr Waller’s reliance upon a statement by Mr Monahan to Dr Waller that CCI would rely upon the Ellis defence, he accepted that there may be difficulties in a situation where litigation had not commenced, but holding such a belief disregarded the Council public statements and the need to press CBP for an appropriate defendant to be nominated.
422	Dr Morrison also accepted that in 2017 the position in relation to the vicarious liability of a religious order for the acts of priests or brothers was unclear and had now been resolved by the decision in Bird v DP (a pseudonym). 
423	Dr Morrison confirmed his disagreement with Dr Waller’s opinion that Mr Pearce’s claim was incapable of being litigated. He rejected the suggestion that it was open to Dr Waller to hold such an opinion. He said that ‘the overwhelming likelihood’ was that, ‘if appropriately pressed’ and ‘using the Archbishop’, he would be ‘very surprised’ if the MSC did not nominate a defendant to Mr Pearce’s claim.
424	Dr Morrison was asked in cross-examination about his opinion that Waller Legal’s distinction between ‘formal’ and ‘informal’ economic loss claims was ‘curious’:
	I find the idea that you can claim economic loss and not claim economic loss at the same time curious, strange, simply inappropriate, frankly. If there’s a diminution of capacity, then that’s a claim in economic loss. And to simply try and take it into account as part of general damages really is not going to happen. If - if the person has suffered in other respects from the inability to work, then that’s part of general damages, but it is not economic loss. And so an informal claim for economic loss of earnings is meaningless, in my view.  
425	When asked about the relevance of Mr Pearce’s cash working life and his failure to lodge any tax returns, Dr Morrison accepted that it was relevant for a court to consider. I then put the following questions to him:
Q:	But what about the trier of fact trying to determine the reliability of the plaintiff, who for all his adult life has not filed a tax return up until the time he saw his current solicitors? If that be the case, if I accept that as the evidence.
A:	Um, that would be, that would obviously be a relevant consideration.
Q:	And what about how it presents in front of a jury? A jury, let’s say if you were selecting a jury, six PAYG taxpayers?
A:	That um, that is true and in general juries are unsympathetic to those who don’t pay tax. Ah but on the other hand juries — we’ve seen it in a couple of very recent Victorian decisions, so Footscray Football Club amongst others — um juries are highly sympathetic to the victims of abuse. So and those are matters which operate in different directions and yes, it’s an issue but on the other hand there is a great sympathy for victims in the position of the plaintiff, if the case is made out.
426	As to the question of Centrelink repayments, he said that he did not believe that there was a realistic risk of repayment, although he had not analysed the legislation, but relied upon advice from other counsel ‘much more experienced’ in the area as he did not ‘set [himself] up as an expert in the area’.
427	In re-examination, Dr Morrison was taken to the evidence of Mr Schack and expressed the opinion that his evidence (i.e. Mr Schack) would have assisted in establishing knowledge on the part of MSC and Monivae in relation to the abuse of students by staff.
428	In answer to my question as to whether Mr Pearce should have been provided with a copy of the Calderbank letter, Dr Morrison was somewhat equivocal about whether the letter should have been given to Mr Pearce. He said that he ‘wouldn’t speak for any particular practice in Victoria’ but in the jurisdictions in which he worked more extensively (namely Western Australia, New South Wales and Tasmania), a reasonable solicitor would have provided it to the client. He said that it would be ‘fairly fundamental’ but it would require some assistance in regard to the way to interpret it ‘because an injured person wouldn’t necessarily appreciate that the defendant was making serious concessions and that the fact that it was only a cause didn’t necessarily mean that there wouldn’t be substantial compensation to flow from it’.
429	When asked if the explanation given at the 13 January 2017 meeting regarding the terms of the offer and the effect of the Calderbank letter was sufficient, absent providing the letter, he said that the thought that there was more than just the letter that was missing from the information provided to Mr Pearce. He said the letter had to be balanced against the other medical reports which were more helpful, however he was of the opinion that the primary failing was that Mr Pearce was not provided with any assessment of potential economic loss, which should have been to the effect that he had a ‘potentially very substantial claim’.
430	I make the following observations as to Dr Morrison’s evidence. In doing so I acknowledge that it needs to be assessed in the light of the failure by Waller Legal to adduce contradictory evidence from its expert, Mr Ellis, or to call Ms Zelez.
431	First, Mr Pearce submitted that I should rely on Dr Morrison’s unchallenged (at least to the extent of not calling Mr Ellis) opinions in their entirety. Waller Legal argued that Dr Morrison’s evidence was ‘generally of little assistance on the important issues in the case: this Court is just as well placed – if not better, given Dr Morrison’s admitted lack of experience in Victoria – to determine issues concerning negligence and Mr Pearce’s counterfactual’.
432	As I shall now explain, I accept this submission insofar as it relates to Dr Morrison’s capacity to express an opinion as to the assessment of Mr Pearce’s economic loss claim and how a reasonable solicitor in this State would have advised and prepared Mr Pearce’s claim (and particularly his economic loss claim).
433	First, whilst I have no doubt about Dr Morrison’s expertise in personal injury claims and his understanding of the relevant legal principles, his knowledge as to solicitors’ practice in the handling of common law claims in Victoria is close to non-existent. Perusal of Victorian decisions in tort cases and providing case updates for New South Wales practice does not, in my view, make him an expert on settlement practices in this State nor as to the manner in which a claim should be prepared for a settlement conference. Indeed, he acknowledged in cross-examination that he was not purporting in his opinions to describe practice in Victorian courts. Accordingly, and notwithstanding his considerable experience in acting on behalf of plaintiffs as counsel in New South Wales and other states, I regard his opinion as to how a solicitor in this state should prepare a case prior to settlement as of minimal significance. Ultimately, as Waller Legal submitted, I think it falls to me to apply my own experience to the available evidence on a number of these issues. 
434	That said, given that there is only one common law in Australia, Dr Morrison’s opinion in relation to the legal principles applicable to Mr Pearce’s claim for economic loss and their application by an Australian lawyer should, in the main, be accepted. As should his opinion as to the viability of the Ellis defence in the context of Mr Pearce’s claim, given his expertise in this area and the fact that Mr Ellis was not called to dispute his views. I also accept generally Dr Morrison’s opinion in respect of the changing approach of the Catholic church and its institutions in respect of claims against Catholic clergy and institutions.
435	Second, I reject Dr Morrison’s evidence as to what preparation and inquiries Waller Legal should have undertaken prior to the ISC and settlement of Mr Pearce’s claim. As I just mentioned, he lacks the expertise to express such an opinion. In any event, it is patently a counsel of perfection, informed, it seems to me, by what would ideally be needed in preparation for an upcoming trial, rather than a settlement conference. His opinion is also inconsistent with the obligations of Waller Legal under the Civil Procedure Act 2010. It ignores entirely questions of cost and proportionality and can safely be put to one side. I have reached this conclusion notwithstanding the failure on the part of Waller Legal to call evidence from Mr Ellis.
436	Third, I accept Dr Morrison’s opinion in relation to the approach of Waller Legal to the legal principles underpinning a claim for economic loss: a ‘formal’ claim for economic loss and inclusion of an ‘informal’ economic loss claim as part of a claim for general damages — as described by Dr Waller in her evidence and in Ms Zelez’s notes. It suffices to say that he is clearly correct — there is no such distinction and economic loss is solely recoverable under that head of damage. I will return to this in a little more detail later.
437	Fourth, I accept Dr Morrison’s opinion that notwithstanding the lack of any documentation of his work history, including tax records, Mr Pearce was still capable of prosecuting his claim for economic loss. 
438	However, any estimate by Dr Morrison as to what a Victorian court (and particularly a Victorian jury) might have awarded Mr Pearce for economic loss seems to be at the outer limit of his expertise. For reasons I will set out in a moment, his reliance upon Mr Thompson’s report as providing a guide is misplaced. 
439	I do not accept Dr Morrison’s apparent dismissal of the risks surrounding Mr Pearce’s economic loss claim which, in my view, are apparent to anyone who has practiced in this area. Dr Morrison’s lack of experience in relation to jury trials in this State undermines the validity of his opinion. The concept of prosecuting a significant claim for economic loss for a plaintiff who has never paid tax voluntarily and not filed a tax return in his working life (until in the hands of his lawyers) is simply extraordinary. Even more so the idea that Mr Pearce’s economic loss claim could be worth a million dollars. This beggars belief. Jurors are comprised, in the main, of persons who have paid tax throughout their working life and have filed tax returns. To use Ms Zelez’s observation — Mr Pearce had been ‘a ghost’ in the workforce. This, combined with what I perceive would have been a dim view of Mr Pearce’s credibility and personality, appears to be of little consequence to Dr Morrison.
440	I had the opportunity over a number of days to assess how Mr Pearce would present as a witness and make a reasonable assessment of how a court would treat his evidence — if his claim made it that far. The estimate of Dr Morrison (who as I understand it has never met Mr Pearce) as to the potential damages is extraordinary and fails to take into account the forensic problems I have just discussed — and which were clearly appreciated by Ms Zelez and Mr Seccull.
441	Further, the prospect of a jury taking an unfavourable view of Mr Pearce’s credibility (and notwithstanding his own confidence as to his presentation) would have been enhanced by the opinion of Dr Neill, the consultant psychiatrist who thought Mr Pearce to be of a narcissistic personality with no psychiatric disability attributable to the abuse at Monivae. I accept that the reports of Dr Tagkalidis, Dr Triggs, Ms Whetton and, to a limited extent, Dr O’Brien are to the contrary. However, I do not accept the proposition that Dr Neill’s opinion would have been dismissed as an outlier. Much would depend upon what a judge or jury made of Mr Pearce and the reliability of his evidence — as it always does in determining whether to accept or reject a psychiatrist’s opinion based upon the account given by the patient or client. 
442	I do not accept Dr Morrison’s analysis of Dr Neill’s report which ignores the thrust of her opinion and appears to be no more than nit-picking at the urging of his instructing solicitor. It is clear that Dr Neill rejects any connection between the abuse and any asserted economic loss. 
443	Dr Morrison accepted that juries generally are antipathetic to claims brought by persons who have avoided paying income tax. His reference to recent large jury verdicts for economic loss in this State in abuse cases as supporting his assessment demonstrates no more than the obvious: each case turns on its own facts. It might also be noted that in the one case he identified (Kneale v Footscray Football Club Ltd) there were no issues surrounding the credibility or reliability of the plaintiff.
444	I consider that Dr Morrison’s reliance upon the decisions in Watts v Rake and Purkess v Crittenden, whilst legally correct, was overstated. Whilst the evidentiary burden can shift, there are no ‘very high standards of proof’ as he espoused. The level of proof required of a plaintiff (not the defendant) remains that provided by s 140 of the Evidence Act — the balance of probabilities. Moreover, as was explained by Ipp J in Seltsam Pty Ltd v Ghaleb, and as a consequence of the decision in Malec v Hutton, the disentanglement referred to by Dr Morrison is ‘more easily achieved’ because of need to evaluate the possibilities in carrying out the Malec exercise. In any event, in this case Dr Neill’s evidence would have displaced the evidentiary onus. So, in practical terms these considerations would hold little sway with a jury or judge who took an unfavourable view of Mr Pearce as a witness when evaluating the possibilities or probabilities of his hypothetical working life. Moreover, the principle would not prevent a jury or a judge from acting on the evidence of Dr Neill and rejecting any connection between the abuse and his ‘history of unemployment or underemployment’.
445	Dr Morrison identified other problems with Mr Pearce’s economic loss claim — the lack of evidence to support the proposition that he would have advanced to university level absent the abuse. I also note that Dr Morrison did not consider the other alternatives apparently considered by Mr Pearce both as a young boy and as an adult — a missionary, a Jesuit or a horse trainer.
446	I conclude that Dr Morrison’s opinion as to the likely assessment of the economic loss claim (and its viability) can safely be ignored.
447	Fifth, and this flows from the previous point as to the difficulties surrounding Mr Pearce’s economic loss claim, Dr Morrison’s strident criticism of Waller Legal’s failure to provide Mr Pearce with an estimate as to the value of his economic loss claim is wrong. In my opinion, Ms Zelez was far closer to the mark when she referred to ‘crystal ball gazing’. This was, on any view, a particularly difficult economic loss claim to assess, and I shall return to this later when considering the allegations of negligence.
448	Sixth, I accept Dr Morrison’s opinion that there was a viable common law claim which could be litigated and, in particular, his opinion in relation to use of the Ellis defence by MSC in late 2016 and 2017 in the context of Mr Pearce’s claim. The failure to call Mr Ellis reinforces my acceptance of his opinion. I explain this in greater detail when I deal with the allegations of negligence.
Expert Evidence — Mr Thompson, the accountant
449	Mr Thompson is a chartered accountant who specialises in forensic accounting. He was engaged by Rightside to prepare a report in relation to Mr Pearce’s past and future economic loss of earnings based on assumptions as to counterfactual employment hypothesis for the purpose of his primary claim against MSC (‘first report’).  
450	He subsequently produced four further reports considering other hypothetical employment scenarios. He also updated his estimates prior to giving evidence at the trial. 
First report
451	For the purpose of calculating Mr Pearce’s actual or likely earnings, Mr Thompson was instructed to assume that Mr Pearce would be employed until age 67 earning an income commensurate with his average income over the past 10 years. 
452	The letter of instruction included the table of Mr Pearce’s work history and attached a limited number of documents from the ATO, namely tax returns and notices of assessment for the years ended 30 June 2000 and 2001; notices of assessment 2000–2001; and payment summaries 2002, 2005–2007, 2009–2017, 2019–2020. Centrelink records and payslips relating to his employment with IJDM Investments Pty Ltd for the period 15 March 2022 to 2 May 2022 were later obtained.  
453	Even after Mr Pearce decided to submit tax returns (in about 2017) there are a large number of financial years for which Mr Pearce did not submit returns and for which the ATO holds no records of his earnings. Centrelink payments were not included in Mr Thompson’s calculations. He noted that the assessment of Mr Pearce’s actual or likely past earnings was complicated by the lack of ATO data and the fact Mr Pearce had performed a lot of cash-in-hand work. 
454	For the purposes of the first report dated 25 May 2022, Mr Thompson was instructed to make the following assumptions with respect to the hypothetical career path Mr Pearce may have undertaken had the abuse not occurred: 
(a)	Mr Pearce would have graduated secondary school at the end of 1982; and 
(b)	then completed a tertiary degree; and 
(c)	thereafter earned the average weekly earnings (‘AWE’) for a tertiary-educated Australian male until retirement at age 67 (i.e. on 3 October 2032).  
(‘Scenario 1’ / ‘the AWE scenario’)
455	Under the AWE scenario, Mr Thompson commenced Mr Pearce’s notional earnings at 90% of the average weekly earnings and from 1 January 1986 to 30 June 1996 (an approximately 10‑year period), then progressed Mr Pearce’s earnings from 90% to 130% of average weekly earnings on the basis that a ‘relationship’ exists whereby tertiary‑educated males typically derive earnings equal to around 130% of the average earnings for all education levels. In assessing the reasonableness of the ‘relationship’ he had regard to the ‘AMP NATSEM Income and Wealth Report’, an OECD Report in relation to advantages from education, a Grattan Institute publication titled ‘Mapping Australian higher education 2018’, and a KPMG publication titled ‘Is tertiary education worth it?’. He also made an allowance for work-related deductions.
456	Mr Thompson then assessed Mr Pearce’s actual or likely past earnings, which were deducted from his hypothetical earnings. 
457	Based on his instructions from Rightside and his own discussions with Mr Pearce, he proceeded on the basis of the following education and work history:
(a)	Mr Pearce concluded his schooling during Year 10 in mid-1979 (i.e. at the approximate age of 14 years) — his loss was assumed to commence on 1 July 1979 and resulted in a ‘benefit’ during the period up to the completion of Mr Pearce’s notional tertiary studies (i.e. 31 December 1985) due to an earlier commencement of his working life;
(b)	From mid-1979 to 1983, Mr Pearce worked as a stable hand with multiple employers; 
(c)	From 1984 to 1993, Mr Pearce worked as chef with multiple employers. During this time, he undertook studies in relation to a chef’s apprenticeship with William Angliss TAFE and, with the exception of a period of part-time employment as a chef during 1992 (with Pathfinder Motel, working approximately 20 to 25 hours per week), Mr Pearce generally worked on a full-time basis;
(d)	Subsequent to around 1994, Mr Pearce worked as chef with multiple employers and experienced various periods of unemployment — his ‘working capacity varied significantly’: 
•	From 2019 to December 2020, Mr Pearce did not work in any capacity; 
•	From January 2021 to March 2021, Mr Pearce undertook part-time employment as a shop assistant with the General Store (located in Edithvale), working approximately 20 hours per week; 
•	From April 2021 to January 2022, Mr Pearce did not work in any capacity; and 
•	Subsequent to February 2022, Mr Pearce undertook part-time employment as a Chef with Mordi Pizza Pasta, working 20 hours per week. At the time of the report, Mr Thompson was instructed that Mr Pearce was on a six month contract but expected it to be extended. 
(e)	In the future, Mr Pearce would continue to undertake part-time employment as a chef. 
458	Mr Thompson adopted the approach shown in the table below based on the employment history in his instructions from the lawyers and his discussions with Mr Pearce during which Mr Pearce advised that he generally received cash-in-hand payments from his hospitality employers and when he was undertaking employment he did not receive government allowances. Mr Thompson also acted upon DHS records which recorded Mr Pearce as having been in receipt of benefits for approximately 639 weeks of the period 9 January 1997 to 8 June 2021, which Mr Thompson calculated to be approximately 50% of that total period. Accordingly, he applied a discount of 50% of full-time commercial earnings.  

459	In calculating the AWE for stable hands and chefs, Mr Thompson referred to data extracts from various years of the What Jobs Pay Reports, and in respect of sales assistants, the Job Markets Australia Report. The wages data within these reports was stratified by age but not location. Within this, he noted that he was not able to find data specific to stable hands and instead used the data related to ‘Farm Hands and Assistants’ which included job duties which ‘assist farmers in agricultural establishments by performing routine manual duties’, and which shared the same code as stable hands in later issues of the What Jobs Pay Report. In respect of the periods in which Mr Pearce worked as a chef, Mr Thompson used data for both ‘cooks’ and ‘chefs’ and also made an after-tax allowance for ‘non-cash’ benefits in the order of meals and drinks whilst at work, at a rate equal to10% of Mr Pearce’s actual earnings.
Second, third and fourth reports 
460	It is not necessary to set out the details of each report. For present purposes, it is sufficient to note that ultimately, Mr Thompson was tasked with making calculations for five employment scenarios:
Scenario 1 – Tertiary educated male AWE
Scenario 2A – Lawyer progressing to salaried partner in a mid-tier firm
Scenario 2B – Lawyer progressing to equity partner in a mid-tier firm
Scenario 3 – AWE
Scenario 4 – Year 12 graduate AWE
Scenario 5 – Trade certificate AWE 
461	A memorandum dated 5 February 2025 was also prepared by Mr Thompson on the instruction to provide final figures for all six scenarios calculated to 31 May 2023. The relevance of this date was said to be more precise in relation to the timing of the settlement of Mr Pearce’s general damages claim. 
462	The assumed retirement ages used for the updated calculations was 67 years (i.e. on 3 October 2032) for the assumed notional retirement age and 60 years (i.e. on 3 October 2025) for the assumed actual retirement age. 
463	Mr Thompson indexed Mr Pearce’s past losses to today’s value, on the basis that a plaintiff is entitled to be compensated for past losses in today’s money in line with his understanding of a change in the legal position in Victoria in 2023. This was done by reference to the Consumer Price Index; adopting the midpoint of the September and March quarters as a ‘proxy’ to be applied to each financial year of Mr Pearce’s notional earnings (less any actual earnings) and deducting any social security benefits received by Mr Pearce. 
464	Mr Thompson calculated statutory interest on past losses for the period 31 August 2022 (an assumed date of writ nine months prior to his calculations of 31 May 2023) to 31 May 2023, at the penalty interest rate of 10%. He further calculated interest on total losses from the period 31 May 2023 to 28 February 2025 on a simple interest basis at a rate of 4.5%. Future losses were discounted at 3% and no allowance was made for contingencies or vicissitudes.
465	Mr Thompson’s final figures (after tax) in respect of Mr Pearce’s economic loss were as follows: 

466	It is necessary to say a little about the methodology underlying Mr Thompson’s calculations with respect to AWE. In his first report, Mr Thompson notes that AWE data ‘essentially captures the earnings across all levels of education attainment including people who do not complete any formal schooling to those who achieve post graduate university qualifications’.  
467	In his oral evidence, Mr Thompson was asked about the dataset used in his calculation for tertiary AWE. Mr Thompson said that the data is not available historically as a full dataset, so the approach taken is to go back in time within the AWE dataset, which is a longstanding dataset, and then apply a premium for having obtained a tertiary education, calculating the premium by reference to supplementary data to estimate a longer time series. He explained that tertiary education refers to ‘anything post high school, post-secondary education, and it can include advanced diplomas, diplomas and the like’.  
468	In cross-examination, he said that there was no further delineation in the dataset as to what type of tertiary education was undertaken, however there was supplementary data which breaks it down to that level. Mr Thompson said that he had not been instructed about what to assume about the tertiary education undertaken (beyond Mr Pearce undertaking a bachelor’s degree), however if he had received more instructions with more granularity in the assumption, it would have been possible to calculate the uplift percentage to a ‘finer level’.
469	Mr Thompson was also cross-examined as to his approach to the limited number of tax returns in calculating Mr Pearce’s actual earnings which were provided to Mr Thompson subsequent to the first report. When asked whether he was more able to identify what he considered to be Mr Pearce’s actual earnings than he had been when he wrote his first report, he said ‘no … not to the standard [he] thought was reliable’ noting that he had been provided with tax returns for the years 2009, 2010, 2011, and 2013 which ‘were at a level that didn’t fit consistently with the level that [he] was instructed [Mr Pearce] worked when I looked at the – the data, the Centrelink data’. Accordingly, Mr Thompson said that he ‘arrived at the conclusion that it wasn’t reasonable to rely on just those documents to calculate an estimate of his actual earnings across that period’. He did, however, rely on tax returns provided for later years (appearing to referring to returns for the years ending 2020–2023) for actual earnings for those years, as ‘the systems of reporting of wages had become more rigorous in more recent years’. He said the methodology across the four reports did not change, however the percentages changed.  
470	When asked whether, from when he was retained to the day he gave evidence, he had been of the view that documentary records are unreliable to determine Mr Pearce’s actual earnings in the period 1994 to 2020, Mr Thompson answered ‘yes’. 
471	Although Waller Legal accepted that Mr Thompson gave forthright evidence, it noted, correctly, that he was a captive to his instructions and, in particular, those about Mr Pearce’s working life. I accept that criticism and, for the following reasons, I regard the evidence of Mr Thompson as, if not being irrelevant, then bordering upon irrelevant to the issues in this case. 
472	First, the primary basis for Mr Thompson’s calculations of Mr Pearce’s past earnings is sheer speculation. As just mentioned, Mr Thompson conceded that there was no reliable basis for assessing Mr Pearce’s earnings from 1994 to 2020 and, in my view, this applies for the whole of Mr Pearce’s working life. There is no warrant for the use of average earnings of particular occupations as a form of substitute for evidence as to what he actually earned. The best evidence is that of Mr Pearce as to his earnings during this period, not what a group of cooks, chefs, farm hands and sales assistants somewhere in Australia carrying out totally different tasks might have earned at some point of time. This is particularly so when one takes into account the fact that Mr Pearce has never worked as a farm hand and worked as a shop assistant for three months in 2021. The onus is upon Mr Pearce to produce evidence relevant to his earnings. This is all the more so where it is only by Mr Pearce’s actions (in failing to file any tax returns during the relevant period) that the Court is deprived of the ability of determining what he actually earned in the past. By not producing credible evidence as to his earnings over most of his working life, Mr Pearce is hoist on his own petard.
473	Second, estimates as to Mr Pearce’s prospective earnings based upon achieving tertiary qualifications and then a career in the law or, indeed, based upon average earnings in different classifications, are also highly speculative. As Waller Legal submitted, notwithstanding that he may have said at times (both when he was young and as an adult) that he wished to be a lawyer, this is no cogent evidence, which would necessarily be inferential, as to what his ultimate career might have been (no matter how many times he mentioned it). It is sheer speculation to assume that he would have made it to tertiary level, let alone completed a law degree and then pursued a career in the law. I do not accept the opinion of Dr Tagkalidis as to Mr Pearce’s career progression — it has no adequate evidentiary foundation. Indeed, Mr Pearce could just as easily have become a Jesuit, a missionary (earning no income) or a bush horse trainer (earning a small income) on this reasoning. The reality is that endeavouring to determine what career Mr Pearce would have followed but for the abuse is close to impossible and cannot be resolved by speculative calculations — even if performed by a forensic accountant.
474	I accept that some cases justify the use of average earnings as a guide as to hypothetical income absent injury, however the vagaries and unreliability of Mr Pearce’s evidence render this unsafe. I reach this conclusion notwithstanding Waller Legal’s concession that the average earnings figures may have some relevance to the assessment of Mr Pearce’s loss. 
475	Whilst I accept that a report such as those produced by Mr Thompson could have been produced for the purpose of a mediation or settlement conference, in my view, there is a real prospect that at any trial of a putative proceeding, a judge would reject Mr Thompson’s evidence wholesale as failing to clear the low bar imposed by s 55 of the Evidence Act. Even if it did overcome that obstacle, then there was a prospect that the evidence (particularly if the case was before a jury) would be ruled inadmissible pursuant to s 135(a) of that Act — its probative value was minimal and was significantly outweighed by the danger of unfair prejudice given its speculative premises.
Findings of fact
476	There are not many disputed issues of fact arising out of Mr Pearce’s dealings with Waller Legal. Where there is an issue, for reasons I have already set out relating to Mr Pearce’s reliability and credibility, I prefer to rely on the contemporaneous documents of Ms Zelez, as opposed to the evidence of Mr Pearce. This is notwithstanding that Ms Zelez was not called to give evidence and the availability of a Jones v Dunkel inference where there is a dispute as to what may have occurred. Except where it tallies with Ms Zelez’s notes and correspondence, I have little, if any, confidence in Mr Pearce’s account given my views as to his veracity and the fact that nearly a decade has passed since the relevant events. 
477	The following represent my findings on specific factual issues germane to the allegations of negligence: 
(a)	That at the commencement of Waller Legal’s retainer and on later occasions including the final discussion on 13 January 2017, Mr Pearce was told by Waller Legal that there were significant difficulties created by the Ellis defence in suing the MSC for damages at common law (be it for economic loss or general damages). That advice was never altered or ameliorated by either Dr Waller or Ms Zelez. The file notes and the opinion of Dr Waller confirm Mr Pearce’s evidence. This advice did not change despite the Council public statements to which MSC subscribed. I accept Mr Pearce’s evidence that, based on Waller Legal’s advice, he perceived the Ellis defence and associated complications with establishing liability on the part of Monivae or MSC to be a significant obstacle to pursuing a common law claim (including a claim for economic loss). 
(b)	That at no time during the course of negotiations did MSC, or its lawyers, CBP, intimate (either verbally or in writing) that it proposed to rely upon the Ellis defence which Waller Legal had outlined to Mr Pearce. There is no mention of this in any of the correspondence between the lawyers, during the ISC, and most tellingly in the Calderbank offer which solely relates to issues of quantum. This was not disclosed to Mr Pearce.
(c)	Whilst I accept that there may have been a discussion between Dr Waller with Mr Monahan in 2014, in terms of MSC’s reliance upon the Ellis defence at that time, I find it difficult to accept that Dr Waller genuinely believed, in late 2016 and 2017 (at the time of the ISC and the January conference), that Mr Pearce’s claim was untenable by reason of MSC’s reliance upon the Ellis defence. The failure to call Mr Monahan and the lack of any corroboration by way of documentary evidence counts against this. As does the lack of any reference to the defence in Ms Zelez’s briefing memorandum to Dr Waller of 11 January 2017. Even accepting Dr Waller’s evidence as to her state of mind in 2016 and 2017 (which is corroborated by Ms Zelez’s file note of the 13 January 2017 meeting) as to the efficacy of the Ellis defence, for reasons I will explain later, I believe that this was misconceived and negligently held at the time that Mr Pearce was given advice as to the settlement of his claim (including the economic loss claim).
(d)	That Mr Pearce was advised by Mr Seccull in Ms Zelez’s presence in November 2016 as to what his claim for general damages and medical expenses was worth. He was told that based on other settlements his claim would be assessed at between $75,000–$150,000. He was also told at that time that he did not possess an economic loss claim worth prosecuting.
(e)	That Mr Pearce was told by Ms Zelez that it was possible to bring a claim for loss of earnings on both a formal and informal basis. I accept his evidence (consistent with Ms Zelez’s notes and Dr Waller’s evidence) that the asserted distinction, as explained to him, was that a formal claim for loss of earnings involved ‘worked up’ calculations as to the amount of the loss, whereas an informal claim could, in some way, be maintained as part of a general damages claim. 
(f)	That Mr Pearce was told by Ms Zelez on several occasions prior to the ISC that there were significant obstacles to pursuing his economic loss claim. These were not confined to the issue of DHS repayment but encompassed the forensic problems in his economic loss claim, including his failure to lodge tax returns, his cash earnings, and his overall credibility as a witness. Each of these were valid and highly relevant matters. Mr Seccull confirmed this advice at the conference prior to the ISC. Ms Zelez’s notes can be relied upon. Mr Pearce’s evidence as to what he was or was not told about his economic loss claim is fatally tainted by his false account on oath on the setting aside application.
(g)	That Mr Pearce was told by Mr Seccull on the day of ISC that the economic loss claim could not be maintained, as is set out in Ms Zelez’s note. This was the first occasion he had been told definitively that his economic loss claim could not be pursued. I reject Mr Pearce’s evidence that he disputed this with Mr Seccull. I have no doubt that Ms Zelez would have recorded his dissent.
(h)	That Mr Pearce was not provided at any time by Waller Legal with any estimate as to the worth of his economic loss claim. I accept his evidence on this point which is consistent with Dr Waller’s evidence that he was not given advice as to the quantum of his common law claim ‘because he didn’t have one’. 
(i)	That Mr Pearce did not give specific instructions to Waller Legal to pursue only an ‘informal’ economic loss claim as part of a general damages claim and not to pursue a ‘formal’ loss of earning claim. I accept that he was never asked in terms to confirm that his economic loss claim should be abandoned. There is no note of Ms Zelez to this effect, and she was not called to say that she had these instructions. However, Mr Pearce was aware that this was the manner in which Waller Legal had suggested that the claim be conducted and, in fact, was subsequently negotiated with MSC. But I repeat that he did not give Waller Legal a specific instruction to abandon his economic loss claim — and if he had, it would have been under the misapprehension that it could be maintained in some way as a part of a claim for general damages.
(j)	That Mr Pearce was not told at the conference with Mr Seccull on 22 November 2016 that his DHS payments would be deducted from an economic loss claim. His ability to distinguish nearly ten years later between whether he was told in the conference ‘would’ rather than ‘could’ cannot be accepted, particularly in the light of my views as to his general reliability and credibility. Indeed, when Ms Zelez’s notes are examined contextually (and particularly the use of the word ‘potentially’ in the note) I think it more likely that the word could was used in the course of Mr Seccull’s discussion. However, I think little turns on this, as I am satisfied, based on Ms Zelez’s notes of the conference and Mr Pearce’s description of the discussion, that he was told by Mr Seccull that there was a real prospect that he would be required to repay DHS 50% of any settlement and that he may also be precluded from receiving benefits in the future. This, he was told, went very much to the utility of bringing a claim for economic loss and the need to exclude it in settlement negotiations. That proposition was not the subject of any demurrer by Ms Zelez or by Waller Legal at the time, or at the ISC, or in subsequent discussions or correspondence with Mr Pearce. I am comfortably satisfied that Mr Pearce laboured under the apprehension (or as it turns out, misapprehension) that if economic loss was pursued there was a real prospect that any amount recovered in the settlement would be the subject of a DHS repayment which could be as much as half the claim. 
(k)	That no attempt was made by Waller Legal to determine whether any DHS amount was repayable by Mr Pearce. As the contents of Mr Ure’s file demonstrates, it was possible to do so — at least to the point of obtaining a preliminary indication from DHS as to the amount of repayment, if any. 
(l)	That Mr Pearce gave instructions to Ms Zelez and Mr Seccull throughout the ISC as to offers to settle the claim. He fully understood that if accepted by MSC, his acceptance would terminate any claim arising out of the abuse perpetrated by Brothers Mamo and Frith.
(m)	That Mr Pearce was not provided with a copy of the MSC Calderbank offer.
(n)	That Mr Pearce gave instructions to Ms Zelez to settle his claim for $140,000 inclusive of costs and signed the settlement agreement. He fully understood that the agreement eliminated any claim on his part arising out of the abuse perpetrated by Brothers Mamo and Frith. I reject Mr Pearce’s evidence in cross-examination that he did not understand that he could sue at common law as an alternative to resolving the claim by negotiation.
(o)	That the advice of Waller Legal as to both the strength of the Ellis defence and as to the viability of his economic loss claim (including the likelihood of being required to make DHS repayment of up to half the claim) was material to Mr Pearce’s decision to accept the MSC offer of $140,000 inclusive of costs. 
(p)	That Mr Pearce’s evidence as to his work history and earnings prior to retaining Waller Legal is so riddled with inconsistencies and inherent improbabilities that there is no reliable indicator of his past earnings or earning capacity.
(q)	That prior to the abuse Mr Pearce was an average student as demonstrated by his Monivae first term report.
The misleading conduct claim
478	It is convenient at this point to deal with Mr Pearce’s claim under s 18(1) of the ACL. I will then return to the question of causation as it relates to Mr Pearce’s negligence claim. 
479	Section 18(1) of the ACL provides that ‘a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.
480	In his closing submissions, Mr Pearce set out the claim under s 18 of the ACL as one of omission as follows: 
	[Waller Legal’s] failure to advise Mr Pearce that he almost certainly would not have to repay any monies to Centrelink or suffer a preclusion period from the receipt of benefits, had he claimed economic loss and its failure to correct Mr Seccull’s Centrelink repayment advice, was misleading or deceptive conduct in contravention of s 18 of the [ACL].   
481	Waller Legal submitted that, as Mr Seccull was not a party to the proceeding and there was no claim against him, any case to be made against Waller Legal in respect of s 18 ‘would appear to be a misleading conduct by silence case’. In other words, what Mr Seccull said had to be ‘yoked home to Waler Legal’.  
482	My findings of fact deal with any factual issues concerning what was said at the conference at Mr Seccull’s chambers on 22 November 2016. I should add that there is no evidence that Ms Zelez said anything at any time, and certainly nothing definitive, to Mr Pearce about DHS repayment.
483	Mr Pearce alleged that Waller Legal’s conduct arose in the course of ‘trade or commerce’. This was not put in issue by Waller Legal. 
484	In Australian Competition and Consumer Commission v Dateline Imports, the Full Court of the Federal Court described the correct approach to alleged contraventions of s 52(1) of the Trade Practices Act (the predecessor to s 18) as follows:
	As to the correct approach concerning representations of different types, in Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682, Gordon J said (at [10]):
	The following principles are worth restating.
1.	A contravention of s 52(1) of the TPA is established by ‘conduct’ which is misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd 2 FCR 82, 87. The ‘conduct’, in the circumstances, must lead, or be capable of leading, a person into error (Hannaford (trading as Torrens Valley Orchards) v Australian Farmlink Pty Ltd [2008] FCA 1591 at [252] citing Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198) and the error or misconception must result from ‘conduct’ of the corporation and not from other circumstances for which the corporation is not responsible: Global Sportsman Pty Ltd 2 FCR 82, 91. ‘Conduct’ is likely to mislead or deceive if there is a ‘real or not remote chance or possibility regardless of whether it is less or more than fifty per cent’: Global Sportsman Pty Ltd 2 FCR 82, 87.
2.	Section 52(1) is concerned with the effect or likely effect of ‘conduct’ upon the minds of that person or those persons in relation to whom the question of whether the ‘conduct’ is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself: Global Sportsman Pty Ltd 2 FCR 82, 87. Section 52 is not designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests: Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 at 241. Moreover, it would be wrong to select particular words or acts which although misleading in isolation do not have that character when viewed in context: Elders Trustee 78 ALR 193 at 241 citing Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199.
3.	‘Conduct’ can, of course, include making a statement which is misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd 2 FCR 82, 88.
4.	By making a statement of past or present fact, a corporation’s state of mind is irrelevant unless the statement involved the state of the corporation’s mind: Global Sportsman Pty Ltd 2 FCR 82, 88. Contravention of s 52(1) does not depend upon the corporation’s intention or its belief concerning the accuracy of the statement of fact but upon whether the statement conveys a meaning which is false. A false meaning will be conveyed if what is stated concerning the past or present fact is inaccurate but also if, although literally true, the statement conveys a meaning which is false.
5.	Precisely the same principles control the operation of s 52(1) to statements involving the state of mind of the maker when the statement was made (e.g. promises, predictions and opinions). A statement which involves the state of mind of the maker ordinarily conveys the meaning (expressly or impliedly) that the maker of the statement had a particular state of mind when the statement was made and, commonly, that there was a basis for that state of mind: Global Sportsman Pty Ltd 2 FCR 82, 88.
6.	A statement of opinion will not be misleading or deceptive or likely to mislead or deceive merely because it turns out to be incorrect, misinforms or is likely to do so: Elders Trustee 78 ALR 193, 242 and Bateman v Slatyer (1987) 71 ALR 553, 559. An incorrect opinion does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any or any adequate foundation: Global Sportsman Pty Ltd 2 FCR 82, 88. An expression of an opinion which is identifiable as an expression of opinion conveys no more than that the opinion is held and perhaps that there is a basis for the opinion. If that is so, an expression of opinion however erroneous misrepresents nothing: Global Sportsman Pty Ltd 2 FCR 82, 88.
7.	However, an opinion may convey that there is a basis for it, that it is honestly held and when it is expressed as the opinion of an expert, that it is honestly held upon rational grounds involving an application of the relevant expertise. If the evidence shows that the opinion was not held or that it lacked any or any adequate foundation, particularly if the opinion was expressed as an expert, a statement of opinion may contravene s 52 of the TPA: Elders Trustee 78 ALR 193, 242, proposition (4): see also Hannaford [2008] FCA 1591 at [253] and RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164; Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; NC Seddon and MP Ellinghaus, Cheshire and Fifoot’s Law of Contract (9th Australian Edition, 2008), [11.116].
485	The principles specifically relating to misleading conduct by silence were set out by the Court of Appeal in Barport Pty Ltd v Baum, in which Kyrou, McLeish and Niall JJA said:
	Conduct will be misleading or deceptive if it induces or is capable of inducing error. Silence may constitute misleading or deceptive conduct where it, for example, embodies a false representation or where there is a reasonable expectation that, if some relevant fact does exist, it will be disclosed. Silence may also form part of the context or factual matrix in which other conduct is to be considered.
	A reasonable expectation of disclosure may arise where law or equity imposes a duty of disclosure; where a statement conveying a half-truth only is made; when the representor has undertaken a duty to advise; when a representation of continuing effect, although correct at the time it was made, has subsequently become incorrect; and when the representor has made an implied representation.
486	Mr Pearce argued that he had a reasonable expectation of disclosure of the Centrelink information by Ms Zelez, both by virtue of having signed the retainer which included an uplift fee on the basis that Waller Legal had ‘the extensive, complex and specialised knowledge and skill required to conduct the matter’, and secondly, the duty to take reasonable care owed to him by Waller Legal.
487	Mr Pearce then says that Mr Seccull’s misrepresentation of the Centrelink position known to both himself and Ms Zelez, did not relieve Ms Zelez of her duty. Her presence at the conference gave rise to a reasonable expectation that if some relevant fact existed (i.e. her knowledge as to the true position in respect of DHS repayment) it would be disclosed, and further if Mr Seccull gave erroneous advice, then Mr Pearce had a reasonable expectation that such incorrect information would be corrected by his solicitor. 
488	Mr Pearce argued that in the absence of evidence from Ms Zelez, there is no explanation as to why she remained silent when the Centrelink advice was given by Mr Seccull and the Court should infer her evidence would not assist Waller Legal. He contended that the Ure documents demonstrate that Ms Zelez had a central role in investigating how Centrelink repayment worked. It was argued that there is a ‘clear’ and ‘irresistible’ inference that Ms Zelez knew the Centrelink advice given by Mr Seccull was incorrect and knew she should have corrected Mr Pearce’s understanding of the repayments. 
489	In response, Waller Legal, in its written submissions, made generic submissions emphasising three things: the context in which the alleged representation arose (including the relationship, reasonably known characteristics of the recipient and the effect on a reasonable person in the position of the recipient), the differentiation between an opinion and a statement of fact, and, whether in a misleading conduct case where silence is alleged, the conduct could give rise to a reasonable expectation that a relevant fact would be disclosed by Waller Legal.
490	Then it contended:
154.	Regardless of whether the Court finds it was ‘would’ or ‘could’, on either view Mr Seccull’s statement should be taken to be a statement of his opinion. If that is accepted, then it should not be concluded that a reasonable expectation existed that Ms Zelez would have said something in respect of what Mr Seccull said.
155.	Accordingly, any representation about Centrelink which the Court might be found to have been made should be to the effect that Mr Seccull represented that a risk existed that a repayment could potentially have to be made to Centrelink from a settlement sum. Even if this is not so, the Plaintiff has not pleaded, and has not yet said, what representation the Defendant made, at the meeting. In that context, Mr Pearce knew that the meeting participants, in addition to him, were a new senior counsel, and solicitor.
156.	Secondly, the Court should conclude that the actual representation identified above was not misleading or deceptive. Dr Waller’s evidence on this point should be accepted (the Defendant having called no contrary evidence): Centrelink did not make its position clear until after settlement occurred. Thus, there remained a risk that Centrelink could require repayment.
157.	That point is illustrated by the email at CB 2808. In that email, Dr Waller wrote to Angela Sdrinis (another experienced practitioner in the field), asking for advice about a potential Centrelink repayment in a different matter. In her response, Ms Sdrinis gave a worked example of the repayment provisions, and stated “[t]he preclusion period generally commences from the date your client became incapacitated”. The Court does not need to make a finding as to whether that is correct (or whether the period commences from the date of the injury); rather, the email illustrates the inherent uncertainty as to Centrelink’s position on repayment.
158.	Thirdly, the Court should not be satisfied that even if there were misleading or deceptive conduct, the Plaintiff has suffered any loss as a result of it. That is because the Court should conclude that Mr Pearce would not have acted any differently had he been given other advice (or if no advice had been given at all) about Centrelink. For the reasons set out above in respect of Mr Pearce’s counterfactual, the concept that Mr Pearce might have commenced a common law economic loss claim in light of the challenges with such a claim should be dismissed.
491	In respect of what was and was not said at Mr Seccull’s chambers, my findings of fact mean that I accept Waller Legal’s submission that one cannot determine exactly what was said at that meeting, but, as I have found, it was more likely that the word could was used in the context of repayment. I have in the findings of fact set out my conclusion as to the tenor of the discussion and that what was conveyed by Mr Seccull to Mr Pearce was that there was a real prospect that he would have to repay 50% out of any settlement to DHS if he pursued a claim for economic loss. This was Mr Pearce’s impression of the discussion.
492	I am also satisfied that Mr Pearce remained under this misapprehension until the time he settled his claim. There is nothing in Ms Zelez’s notes that indicates that the DHS repayment issue was revisited by either her or Dr Waller prior to the settlement.
493	Given the lack of precision as to what precisely was said by Mr Seccull to Mr Pearce and whether the statement or statements made by him were truly statements of fact or expressions of professional opinion is debatable. However, I am satisfied that Mr Pearce accepted that what he had been told by Mr Seccull as to DHS repayment was an accurate statement of his potential liability to DHS if he maintained an economic loss claim. I proceed on the basis that Mr Seccull’s statements constituted actionable conduct within the meaning of s 18 of the ACL.
494	I do not accept the submission of Waller Legal that there was ‘inherent uncertainty’ as to the DHS position on repayment and therefore the advice of Mr Seccull was not misleading. I have addressed this issue when dealing with Mr Pearce’s claim in negligence. The correspondence that it relied upon between Dr Waller and Ms Sdrinis in 2015 was generic and not case specific. By far, the better measure was the information obtained by Ms Zelez in her handling of Mr Ure’s claim, who had been the subject of abuse at a young age. His claim required no DHS repayment and, as Dr Waller conceded, and contrary to Waller Legal’s submissions, there was no real uncertainty about Mr Pearce’s position in respect of repayment: it was highly likely given his age at the time of the abuse that he would not be required to make any repayment to DHS. 
495	As is explained by Gordon J in Australian Competition and Consumer Commission v Dukemaster Pty Ltd, it is the effect of the conduct of Waller Legal upon the mind of Mr Pearce that is critical in determining whether its silence was misleading or deceptive for the purpose of s 18 of the ACL. This, as Waller Legal emphasised in its submissions, is dependent upon the context in which the impugned conduct of Waller Legal occurred.
496	The context in which the statement was made is critical: Mr Seccull was a Queens Counsel briefed to appear at the ISC by Waller Legal. Ms Zelez was a junior solicitor. Mr Pearce held Mr Seccull in high esteem. He said in his evidence that he ‘revered and respected the man’ and felt ‘confident [he] was in good hands’ and that he thought he ‘had to accept his advice’ — such sentiment is also reflected in file notes and emails between Mr Pearce and Ms Zelez. For instance, on 11 January 2017 he wrote: ‘I was very excited by the inclusion of the recently appointed QC you chose. Great choice, clever man and i really like him’. 
497	I consider that the only relevant misleading conduct(if Mr Seccull’s statement or statements as to DHS repayment are regarded as such), be it in the making of the statement or the failure to correct it —was that of Mr Seccull who is not a party to the proceeding. It was his statement that Mr Pearce relied upon. 
498	Notwithstanding the relationship between Waller Legal and Mr Pearce, its silence on the issue (or, more correctly, Ms Zelez’s silence on the issue) played no part in Mr Pearce’s misconception as to likely DHS repayment — nor could there be a reasonable expectation on his part that Waller Legal would correct it. The central relationship in relation to this advice was that of Mr Seccull and Mr Pearce: any reasonable expectation on the part of Mr Pearce as to correction of the advice given by Mr Seccull related solely to Mr Seccull — as the representor — and not to Waller Legal. I do not accept that its retainer, the terms of the fee agreement or its role as Mr Pearce’s solicitor altered that position.
499	Waller Legal did not engage in actionable conduct within the meaning of s 18 of the ACL.
500	I should add this. This finding relates solely to Waller Legal’s potential liability under the ACL. That obligation is separate and distinct from its tortious duty to conduct Mr Pearce’s claim with due care and skill which is considered separately. The test under s 18 of the ACL requires an assessment of the reasonable expectation of Mr Pearce — as opposed to the test in negligence which requires an objective assessment of the conduct of Waller Legal judged against that of the hypothetical reasonable solicitor in Waller Legal’s position.  
Negligence — the scope of the duty of care 
501	There is no dispute, as far as I can tell, as to the legal principles relevant to Mr Pearce’s negligence claim.
502	The duty of care owed by a solicitor to a client arises out of the client’s retainer of the solicitor. The duty is concurrent in both contract and tort. Here, Waller Legal’s retainer was originally oral and eventually in writing — in the form of the fees agreement. 
503	In its amended defence, Waller Legal admitted that it was an implied term of the retainer that it ‘would exercise reasonable care and skill in performing the retainer’. In particular, it admitted that Waller Legal ‘was required to take reasonable care to ensure that the plaintiff was appropriately advised in relation to his claim against the MSC in relation to the Abuse, including by providing advice in relation to damages, risks and prospects of success’.
504	This admission is consistent with the scope of the duty set out in Part X of the Wrongs Act, and particularly the division which deals with ‘[n]egligence of professionals and persons providing particular skills’. Section 58 of the Wrongs Act reads as follows:
	In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by reference to—
(a)	what could reasonably be expected of a person possessing that skill; and
(b)	the relevant circumstances as at the date of the alleged negligence and not a later date.
505	A solicitor’s duty is to exercise professional knowledge and skill ‘in the protection and advancement of the client’s interests’ in carrying out the tasks which are the subject of the retainer. Gageler J said in Badenach v Calvert:
	The duty is to exercise that degree of care and skill to be expected of a member of the profession having expertise appropriate to the undertaking of the function specified in the retainer.
506	That degree of care and skill, as reflected by s 58 of the Wrongs Act (and the common law) is one of reasonableness in all the circumstances of the case.
507	The engagement of counsel by a solicitor (and any advice proffered to the client by counsel as part of that retainer) does not relieve the solicitor of an obligation to exercise reasonable care. As Macaulay J said in Taseska v Carus:
	Logically, it is not inconsistent with the exercise of reasonable care that such a solicitor [one with a particular expertise], having obtained counsel’s advice, independently forms his or her own view as to its correctness and the appropriate course to be adopted for his or her client.
Did Waller Legal breach its duty of care to Mr Pearce?
508	With those principles in mind, my task is to assess each of Mr Pearce’s allegations of breach against Waller Legal and determine whether a solicitor exercising a reasonable degree of care and skill, with Waller Legal’s professed experience in handling institutional abuse claims, would have acted differently. 
509	This exercise — both at common law and under the Wrongs Act — is one of reasonableness, not perfection, and is not to be carried out retrospectively (in other words, knowing of the consequences of the alleged breach). Rather, it is to be carried out by examining the position and conduct of the client (Mr Pearce) and the solicitor (Waller Legal) as it existed at the time of the alleged breach or breaches.
510	Returning to the allegations of breach levelled against Waller Legal, I propose to address each individually but before I do so, I should deal with one aspect of Waller Legal’s defence. 
511	I reject the proposition advanced by it that any analysis of Waller Legal’s conduct should be confined to the 13 January 2017 phone call between Mr Pearce, Dr Waller and Ms Zelez. It is abundantly clear on the basis of both Mr Pearce’s testimony (notwithstanding my reservations about it) and Ms Zelez’s notes, that throughout the course of its retainer there was regular discussion as to both the conduct of his claim, and at times, as to its prospects of success. Given the breadth of Mr Pearce’s allegations, it is the whole of Waller Legal’s handling of his claim that requires consideration and particularly the advice given to Mr Pearce between November 2016 and February 2017 — when his claim was settled. 
Did Waller Legal adequately investigate and/or prepare the economic loss claim on behalf of Mr Pearce?
512	Mr Pearce argued that Waller Legal’s preparation of the claim for economic loss during the time of its retainer was inadequate. Waller Legal should have assessed and quantified Mr Pearce’s economic loss claim by:
•	taking a detailed work history from Mr Pearce;
•	speaking with former employers and/or work colleagues;
•	speaking with present and former partners to better understand Mr Pearce’s working capabilities (or lack thereof);
•	obtaining medical reports to substantiate the effects of the abuse on Mr Pearce’s ability to gain and/or maintain long-term employment; and
•	instructing a forensic accountant to provide a report on past and future economic losses.
513	It was said that Dr Waller accepted that such steps were ‘important’ and ‘potentially helpful’ to investigating a claim for economic loss but were not undertaken.
514	The submission was supported by the opinion of Dr Morrison, who suggested that these steps should all have been carried out prior to the ISC.
515	It was not in issue that Waller Legal, apart from obtaining a report from Dr Triggs and the treating GP and psychologist, had not carried out these steps prior to the ISC or settlement of the claim in February 2017.
516	I have already expressed my view as to Dr Morrison’s capacity to opine on the role of a solicitor in preparing a case in this State and as to his opinion of the appropriate level of preparation for an ISC. I add the following.
517	Waller Legal was required to act reasonably, not perfectly. It had obtained Mr Pearce’s instructions as to his working life and had obtained supportive medical reports. That on its own was sufficient for it to form a view as to the viability of his economic loss claim, at least for the purpose of an ISC. Ms Zelez had identified that there were serious problems with litigating Mr Pearce’s economic loss claim over and above that of DHS repayment. This was confirmed by Mr Seccull. 
518	The engagement of Mr Thompson (or a similarly qualified forensic accountant) at this point of time is nonsense. Mr Pearce could not have had a worse record in relation to work history and documentation. His cash earnings and failure to file tax returns at any time in his working life prior to instructing Waller Legal was a major inhibitor to any economic loss claim. The obtaining of such a report would not only have been an expensive exercise but close to, if not, futile, in the context of this case. I have already commented as to the adequacy of Mr Thompson’s report and whether it could, in fact, have been tendered or relied upon in the course of any putative trial. At best, it was of marginal relevance, and, at worst, its use at trial could have been used by MSC’s counsel to highlight the disingenuousness of Mr Pearce’s claim.
519	Contrary to Dr Morrison’s view, a reasonable solicitor would only have contemplated the engagement of a forensic accountant such as Mr Thompson once a proceeding had been issued, and even then, the lack of documentary evidence and the inadequacy and inconsistency of instructions as to Mr Pearce’s working history would have counted against such engagement. As Dr Waller noted, there was also a considerable expense associated with this exercise that would have to have been met by Mr Pearce.
520	The idea that employers, family and fellow workers should have been interviewed at this stage of litigation is also fanciful. All that was required of Ms Zelez in preparing for an ISC and any consequential settlement was to take adequate instructions from Mr Pearce as to his work history. Once Ms Zelez appreciated that Mr Pearce’s economic loss claim was fraught with problems — starting with the lack of documentation and ending with tax evasion — this approach was not only sensible but the only one that could be entertained.
521	Even allowing for the fact that Dr Triggs supported a relationship between the institutional abuse and its effects upon Mr Pearce’s capacity to work, this did not oblige Ms Zelez to do any more than to document his work history. This she did. It was not necessary to engage another psychiatrist, at this stage, to rebut Dr Neill’s opinion.
522	The test is reasonableness, not perfection regardless of cost. The type of inquiries now suggested by Mr Pearce are those that may have been undertaken by a solicitor acting reasonably if the proceeding had been issued and was then destined for trial — and if it was determined to prosecute an economic loss claim.
523	Finally, mention should be made of the obligations upon Waller Legal under the Civil Procedure Act 2010. The overarching purpose, under s 7 of the Act, is to facilitate the ‘just, efficient, timely and cost-effective resolution of the real issues in dispute’. An appropriate dispute resolution process facilitates this aim. The Act provides for a number of overarching obligations. These obligations applied to Waller Legal.
524	In particular, for the purpose of avoiding undue delay and expense, Waller Legal was under an obligation to only take steps which it reasonably believed would facilitate the resolution or determination of the proceeding and to use reasonable efforts to resolve the dispute by agreement, including by ADR unless it was not in the interests of justice or the dispute is of such a nature that only judicial determination was appropriate. Of note is the obligation to use reasonable endeavours to ensure that legal and other costs incurred in connection with Mr Pearce’s claim were reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute.
525	In my view, Waller Legal complied with these obligations and the steps suggested by Mr Pearce in the context of his case run contrary to Waller Legal’s obligations under the Act.
526	There is no substance in this allegation.
Did Waller Legal correctly advise Mr Pearce as to the strength of the Ellis defence and other potential obstacles to the prosecution of his economic loss claim?
527	Mr Pearce argued that there was ‘no rational basis for Dr Waller to regard Ellis as insurmountable’ and ‘abundant evidence to suggest it would not be a barrier in a litigated claim’. It was then said that if Dr Waller held that belief, it was untested (both in respect of her failure to ask any questions to test her suspicions or to test the issue by issuing proceedings) and derived from historical conversations with Mr Monahan which had been superseded by the legal landscape subsequently changing ‘dramatically’. It was submitted that to the extent that Waller Legal conveyed that belief to Mr Pearce (or perhaps more accurately, did not inform him of the substantial changes to the Church’s position on Ellis), it was incorrect advice. 
528	Further, it was argued if Dr Waller genuinely and reasonably held that belief (which Mr Pearce submitted was, on the most generous assessment, ‘an unjustified suspicion’), she nevertheless conceded that Mr Pearce was not told that Ellis was the reason why an economic loss claim was not possible. Instead, it was Mr Pearce’s understanding that the risk of DHS repayment rendered a formal economic loss claim futile.
529	In response, Waller Legal via Dr Waller maintained that during the course of Mr Pearce’s retainer, the Ellis defence with its associated complications was a complete (and on her account the only) obstacle to Mr Pearce’s claim (be it either in general damages or economic loss). This, it was argued, was communicated to Mr Pearce on multiple occasions.
530	In terms of Mr Pearce’s claim, Waller Legal, in its written submissions, said that Mr Pearce had failed to:
(a)	identify any individual who had requisite knowledge who might be an appropriate Defendant to any claim;
(b)	(as already identified) call any evidence about how Monivae operated, including how supervision and control occurred at the school;
(c)	call any evidence about the operation of the MSC, including the manner in which it regulated its Brothers (including Brother Mamo and Brother Frith); or
(d)	detail any inter-relationship between Brother Xavier (the only person to whom Mr Pearce said he reported the abuse) and others within Monivae or the MSC which might make it possible to identify a Defendant.
531	Dr Waller, in her evidence, said that suing an individual perpetrator was fraught with difficulty. Then there was, so she argued, no identifiable defendant (be it corporate or individual) which could be shown to have exercised the right of control or management over Monivae at the relevant time. An unincorporated entity could not be sued. Further, an entity that could be sued would need to owe a duty of care to the plaintiff and have knowledge of the risk posed by the perpetrator. A claim based on vicarious liability for the perpetrator’s actions was dubious. Even if all this could be established then whether that entity would be indemnified or have the assets to satisfy any judgment was unknown. Finally, if these problems could be overcome then there was the issue of pleading out a tenable cause of action.  
532	Dr Waller’s own knowledge of the legal position as just summarised was, so she contended, fortified by her discussions with Mr Monahan, and therefore it was appropriate to advise Mr Pearce that he had no viable claim (including an economic loss claim) and that he should accept the MSC offer.
533	In its written submissions, Waller Legal asserted that these series of obstacles that Dr Waller had identified effectively rendered any claim (whether for general damages or economic loss) of Mr Pearce worthless — as Dr Waller testified.
534	For the following reasons, in the context of Mr Pearce’s claim and its settlement I do not accept that Dr Waller’s position was reasonable — rather, I consider that Dr Waller’s belief was negligently held and the advice provided by Waller Legal to Mr Pearce from late 2016 to early 2017 as to the effect of the Ellis defence on his claim was incorrect.
535	First, the reality is that in the context of Mr Pearce’s case and its defence by MSC these so-called insurmountable obstacles are furphys. 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 Mr Pearce’s claim in 2016 and 2017. There is a complete absence of MSC, through its lawyers CBP, adverting to the Ellis defence in any of the negotiations or correspondence with Waller Legal. The notes of Ms Zelez of the ISC confirm this, and, most tellingly, the Calderbank letter makes no mention of the Ellis defence (as Dr Waller accepted) but relies upon issues related solely to the quantum of Mr Pearce’s damages. 
536	Moreover, the contents of the Waller Legal file, when viewed globally, demonstrate that the problems posed by the Ellis defence whilst mentioned from time-to-time, do not appear to be treated as an insurmountable obstacle. For instance, the memorandum to Mr Seccull, presumably drafted by Ms Zelez prior to the ISC, refers to liability issues and notes that Waller Legal expects that the Corporation would be named as a defendant. There is no mention of the Ellis defence per se as an obstacle. 
537	Of course, any doubt surrounding this issue could have been resolved by Waller Legal calling Ms Zelez to give evidence, which it did not do. 
538	In applying Jones v Dunkel reasoning, the question is whether a trier of fact would have expected a particular witness to have been called: 
	any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. 
539	The failure by Waller Legal to call Ms Zelez is stark. She could have quelled any dispute as to her and Waller Legal’s understanding of the viability of the Ellis defence in the context of Mr Pearce’s claim, particularly as at the end of 2016 and early 2017. Ms Zelez’s briefing memorandum to Dr Waller of January 2017 whilst referring to liability issues does not mention the Ellis defence as a relevant factor in the consideration of the MSC offer. The failure to call her supports the conclusion that Ellis was not the insurmountable obstacle portrayed by Dr Waller — at least in terms of Mr Pearce’s claim. 
540	In addition, the failure of Waller Legal to call Mr Creasey, the responsible partner at CBP, or a representative of CCI involved in the defence of Mr Pearce’s claim, is of significance. One could reasonably have expected each of these witnesses to support what was said to be Waller Legal’s understanding of the approach of MSC in relation to the claim: as to prospective resolution, the nomination of a responsive defendant and any putative proceeding issued by Mr Pearce against a nominated defendant. This is particularly so when the contrary proposition (i.e. that the claim was untenable because of the Ellis defence and associated complications) flies in the face of all of the recorded contemporaneous evidence as to the negotiations and offers of settlement. 
541	The only rational conclusion is that the sole defence advanced by MSC, at the time of the ISC and subsequently, in relation to Mr Pearce’s claim, related to the quantum of his claim and not the liability of MSC for the consequences of the alleged abuse. Dr Waller’s opinion as to the obstacles facing a common law claim may well have been open to a solicitor practising in this area in 2014, however by late 2016 and 2017, and specifically in the context of Mr Pearce’s case, such a belief was not reasonably open. 
542	Second, a fundamental part of Dr Waller’s insistence that a claim could not be mounted in respect of the alleged abuse is a discussion (or discussions) that she had with Mr Monahan in or about 2014 as to CCI’s determination to proceed with reliance on the Ellis defence. I have already adverted to the vagueness of Dr Waller’s evidence on this topic. It was underwhelming, to put it mildly. On her account, MSC, it could be inferred from the discussions with Mr Monahan, would, for time immemorial, rely upon the Ellis defence. The lack of documentary evidence supporting this proposition is stark, as is Dr Waller’s unsatisfactory recollection of the conversation or conversations with Mr Monahan. Whilst I am prepared to accept that a conversation may have taken place between the two in 2014, it does not mean that this was Mr Monahan’s approach or that of MSC or CCI in 2016 or 2017 — nor that Dr Waller should have understood it to be so.
543	I am fortified in this conclusion by the failure of Waller Legal to call Mr Monahan. In this case, it was apparent to the most casual observer that the Monahan conversation(s) were central to Dr Waller’s insurmountable obstacles explanation. Mr Monahan was capable of ‘putting a true complexion on the facts’, particularly in the absence of any documentary evidence underpinning the assertion that the Ellis defence remained part of MSC’s defence strategy in 2016 and 2017. His absence reinforces the conclusion that once the Council’s public statements had been made, reaffirmed by the MSC policy of February 2016 and its conduct of the defence of this claim, that it was not MSC or CCI’s policy at this time to rely upon the Ellis defence.
544	In any event, what Mr Monahan may have said previously to Dr Waller in 2014 in general terms was irrelevant to the MSC approach to this claim. By the time of the ISC in late 2016 and the settlement in early 2017, any competent lawyer practicing in this area would have known that at this time there was a real prospect that the Ellis defence was of reduced relevance in claims against a number of Catholic institutions and that relevant defendants may be nominated to meet claims. Even if this be too optimistic an assumption, then for the purpose of Mr Pearce’s claim, surely the correct position as to MSC relying upon the Ellis defence and any associated defences should have been clarified by Waller Legal in discussions with CBP.   
545	In truth, it did not need to, as CBP had not uttered a murmur about the Ellis defence or, for that matter any liability issue. Mr Pearce’s claim was being treated as an assessment of damages. 
546	Third, I do not accept Dr Waller’s contention that, even if provided with indemnified entities to sue, then the named defendants would not stand in the shoes of MSC. In the context of Mr Pearce’s claim, the suggestion is inconsistent with the Council’s public statements in 2015 and the MSC policy of February 2016. I accept Dr Morrison’s evidence on this issue that it ‘makes no sense whatsoever’ and it ‘certainly wouldn’t be compliant with the spirit of the May and November declarations which came out by way of guidelines’. I should add that there was no evidence that MSC would not have funds to pay a negotiated settlement, or if it came to the crunch, a judgment in favour of Mr Pearce.
547	I also accept Dr Morrison’s evidence that it was likely that CBP would, if pressed after the ISC, have provided the identity of a defendant or defendants to Waller Legal — as it had done in Mr Negri’s case. At no stage did MSC or CBP refuse to do so — they procrastinated until the ISC. This is clear from Mr Creasey’s response to Ms Zelez’s request a week prior to the ISC when he asked whether it was ‘really necessary at this time?’ and whether such information could be provided at the ISC as he ‘assume[d]’ that proceedings would not be issued until after an ISC. A not unreasonable assumption. There is no reason to think that CBP would not have supplied the name(s), particularly in the absence of any evidence to the contrary, given the contents of the Council public statements to which MSC subscribed in its February 2016 policy.
548	I am also comfortably satisfied that if the matter had been pressed, the Corporation could have been named as a defendant (as it was in the Porters Lawyers claim and in the Negri settlement deed) — alternatively the Trustee (as named in the Negri settlement deed) — and that it is likely that the only issue raised by MSC would have related to the quantum of Mr Pearce’s claim.
549	Fourth, much effort was spent by Mr Pearce in the written submissions identifying a cause of action that could have been maintained in a claim against a named defendant nominated by MSC. It was said that the statement of claim could have alleged direct liability of a nominated body for all the reasons set out in the Waller Legal memorandum to Mr Seccull.
550	Similarly, Waller Legal spent a considerable time in its final submissions endeavouring to demonstrate that, as a matter of jurisprudence, the whole exercise of Mr Pearce pursuing a common law claim was fruitless and that Dr Waller was correct in her assessment of the risks surrounding the claim and that there was no prospect of litigating a claim. In other words, he should have taken the money and run.
551	But all of this, it seems to me, misses the fundamental point which I have laboured to spell out: it can be readily inferred that MSC was not interested in raising any issue about liability in Mr Pearce’s case — rather, its focus was solely on quantum — as has just been discussed.
552	I have accepted Dr Morrison’s opinion (not contested by Mr Ellis, Waller Legal’s expert) as to the effect of the changing legal landscape between 2014 and 2016 and the importance of the Council’s public statements to which MSC subscribed. Given the changing position of the Catholic Church, as demonstrated by the Council’s public statements whatever the legal position in terms of the correct identity of the organisation or persons running the college, it was clear that a number of Catholic institutions were prepared to name a body which could act as an appropriate defendant if a proceeding was to be issued. The Porters Lawyers claim was an example.
553	It follows that I reject Waller Legal’s submission that the Council’s public statements do not go so far as to guarantee the nomination of an appropriate defendant. Even if I am wrong about this, there is nothing in the conduct of the defence of Mr Pearce’s claim to suggest that a nominated defendant would not have been provided in the event of his claim not being successfully resolved. 
554	Fifth, even if one accepted the force behind Waller Legal’s contention that legal entities such as the Trustee and the Corporation had, in truth, no involvement in the day-to-day running of Monivae and were, in effect, creatures of legal fiction, this, of itself, would not have prevented the issue of a proceeding against one or both of those entities. Each was a party to the Negri settlement, and each had admitted in the settlement deed that it was responsible for the operation and management of Monivae. 
555	Whilst this concession might have been a fiction, the terms of that settlement nevertheless provided a proper basis upon which to issue a proceeding against those two organisations, particularly if nominated by MSC or CBP. It would have been very difficult to maintain a strike-out application given the admissions contained in the Negri settlement deed, and the question could only have been properly traversed and determined at trial. 
556	In other words, even allowing for the arguably fictitious nature of the admission in the Negri settlement deed, it was enough upon which to base a potential proceeding in respect of Mr Pearce’s abuse. Moreover, it was consistent with the clear intention of the Council’s public statements in relation to litigation concerning alleged abuse in Catholic institutions — to which MSC subscribed. This is all the more so when it is apparent that in the real world (as opposed to that of fine jurisprudential discussion) MSC — aware of the numerous other cases involving Brother Mamo — was only interested in contesting the quantum of Mr Pearce’s claim.
557	Further, the proposition advanced in Waller Legal’s submissions that the terms of the Negri settlement deed does not amount to an admission as to the operation of Monivae is wrong. On any analysis the representations by the Corporation and the Trustee in the Negri settlement deed constitute, at the least, an arguable admission that one or other or both of the Trustees or the Corporation operated Monivae. It also matters not a jot that Dr Waller said the Corporation was a not-for-profit charity. 
558	I repeat that this detailed jurisprudential discussion as to the inability to identify and maintain a claim against a responsive indemnified defendant cannot overcome the inevitable inference drawn from the conduct of the MSC defence in the last half of 2016 — that MSC would have nominated a defendant who was responsive to the claim, which would then have proceeded as an assessment of damages which it would have endeavoured to resolve. That, it seems to me, is blindingly obvious. None of the points now agitated by Waller Legal as forming part of the insurmountable obstacle matter if MSC was not going to rely upon them.
559	I am satisfied therefore that there was no reasonable basis for Waller Legal to assume in late 2016 and 2017 that MSC, represented by CBP, was likely to maintain the approach that the Ellis defence and associated problems was a real obstacle to Mr Pearce’s claim. To the contrary, by the time of the ISC it was clear that Mr Pearce’s claim was being treated by MSC as an assessment of damages. If Dr Waller truly held the belief that MSC would adopt the Ellis defence in Mr Pearce’s claim, then, in my view, it was negligently held. Accepting that Mr Pearce was advised at the time of the ISC and subsequently that the defence was an insurmountable obstacle to his claim, then he was wrongly advised.
560	Finally, I think it was incumbent upon Waller Legal to explain clearly to Mr Pearce the basis for the Calderbank offer as set out in the CBP letter. This is referred to in Ms Zelez’s notes of the 11 January 2017 Waller Legal internal meeting, however it is not clear from Ms Zelez’s note of the 13 January 2017 meeting with Mr Pearce and Dr Waller that anything other than the costs consequences and the prospects of success of litigation were discussed. In the absence of Ms Zelez as a witness, it seems likely that Mr Pearce was told little if anything about the basis for the MSC offer. He should have been told that based on the contents of the letter it appeared that, at least at the present time, the potential obstacles characterised as the Ellis defence were not being relied upon by MSC.
Did Waller legal advise Mr Pearce correctly as to the nature and value of this economic loss claim — and that he was able to make such a claim?
561	Mr Pearce submitted that Dr Waller conceded that Mr Pearce was never told the value of his claim prior to signing the settlement agreement. It was also said that Dr Waller agreed that it was critical for survivors to be advised of the value of their claims before signing away their rights.
562	Mr Pearce then argued that it was wrong for Waller Legal to advise that an ‘informal’ economic loss claim could be made as part of a claim for general damages. The submission was supported by the evidence of Dr Morrison, who opined that the notion was ‘nonsense’ and that it was ‘unclear in law how this could be done’.
563	I have accepted that Mr Pearce was told that he was able to make an informal claim for economic loss as part of his general damages claim. As I also mentioned, an examination of the Waller Legal file throughout its dealings with Mr Pearce demonstrates there are references by Ms Zelez (it would appear on Dr Waller’s instructions) to the making of ‘formal’ and ‘informal’ loss of earnings claims. This no doubt was based on Dr Waller’s approach.
564	As to the nature of the claim and the distinction between formal and informal economic loss claims, Dr Waller’s explanation is, I am afraid, wrong. I accept and agree with Dr Morrison’s opinion. Dr Waller’s explanation that a formal claim refers to a claim based on specific calculations of economic loss as opposed to an informal claim which involves the application of the Malec v Hutton principle makes no sense.
565	Both Dr Waller and counsel for Waller Legal in oral submissions sought to identify an informal claim as one made under the Farlow principle — a reference to the decision of Herring CJ, Sholl and Hudson JJ in Victorian Stevedoring Pty Ltd v Farlow. This was a decision of the Full Court decided twenty seven years before the High Court decision in Malec v Hutton. But that is of little consequence as a Farlow claim is a claim for economic loss — not general damages.
566	There are no such legal concepts as formal or informal economic loss claims. All economic loss claims (past and future) involve the application of Malec v Hutton principles and reasoning. Moreover, the idea, as Ms Zelez appears to have thought, that an informal claim (whatever that might mean) could be bundled into a claim for general damages is categorically wrong. There is either a claim for economic loss or there is not. Its particulars may be specific or vague. However it is put, such a claim forms no part of a general damages claim.
567	During Dr Waller’s single conversation with Mr Pearce on 13 January 2017 prior to the settlement, economic loss was not mentioned — it had been jettisoned at the ISC if not before.
568	Waller Legal had in its possession the reports of Dr Trigg and Ms Whetton, accompanied by Mr Pearce’s instructions that his ability to earn income had been deleteriously affected by the abuse at Monivae. This should have led a reasonable solicitor practicing in this area to conclude that Mr Pearce had an arguable economic loss claim, notwithstanding the myriad of forensic problems surrounding it. Mr Pearce should have been advised that he had such a claim and that it could be maintained in a statement of claim drawn on his behalf.
569	As to the value of the claim, Mr Pearce relied upon Dr Morrison’s evidence that an assessment of economic loss was the ‘main thing’ which was withheld from Mr Pearce and this ‘troubles [Dr Morrison] most’ as it meant that Mr Pearce ‘was unaware that he had a potentially very substantial claim’. According to Dr Morrison, Mr Pearce should have been advised that he had a substantial claim and that his claim was worth above one million dollars.
570	For reasons I have already stated, I reject Dr Morrison’s evidence relating to his assessment of Mr Pearce’s economic loss claim and the advice that should have been given to Mr Pearce concerning it.
571	Contrary to Dr Morrison’s opinion, this was an extraordinarily difficult claim to assess given the adverse matters surrounding its prosecution — which were clearly appreciated by Ms Zelez and Mr Seccull — and I suspect not by Mr Pearce who backed himself as a ‘good witness’. I disagree and have expressed my reasons earlier.
572	Waller Legal’s notes record that Mr Pearce had no pay slips, tax returns or other financial records. He confirmed that no tax records existed at the time he consulted Waller Legal. Even Dr Morrison correctly accepted that the absence of tax returns over decades could mean that a jury would be unsympathetic towards a plaintiff. This is wonderful understatement. Mr Pearce had never voluntarily paid a cent to the ATO. His account of his work history was a nightmare, and he was a cross-examiner’s dream. 
573	Notwithstanding the nature of the abuse and its effects upon him (corroborated by his family and medical practitioners), this was a very difficult claim upon which to place a figure or figures. This was particularly so when Dr Neill (with whom a jury, having seen Mr Pearce, might have agreed) was ready to assert that Mr Pearce had a narcissistic personality and that his inability to earn income bore no relationship to the abuse. 
574	For my part, I am not at all certain what a reasonable solicitor in Waller Legal’s position would have advised Mr Pearce as to his economic loss, other than to tell him that he possessed a viable claim for diminished earning capacity which was fraught with difficulties and could not be quantified with any confidence. An estimate in the region of $1 million would have been foolhardy, if not negligent. I see nothing wrong with Ms Zelez’s reference to a crystal ball gazing — indeed I agree with it wholeheartedly.
Did Waller Legal abandon Mr Pearce’s economic loss claim contrary to his instructions?
575	Mr Pearce relies on Dr Waller’s concessions that when she advised MSC there would be no claim for economic loss, she did so without having received those instructions from him, and in fact, counter to the instructions he had given. 
576	It is argued that by 7 July 2016, Mr Pearce understood Waller Legal to be pursuing his economic loss claim. But on 18 July, and in the absence of further instructions, Dr Waller wrote to the lawyers for MSC advising that Waller Legal was ‘not instructed to prepare a formal loss of earnings component for the purpose of ADR’. This, Mr Pearce says, amounts to an abandonment of his economic loss claim against his instructions and without his knowledge.
577	Dr Waller accepted that Waller Legal did not seek or obtain from Mr Pearce specific instructions to abandon his economic loss claim.
578	It is incorrect, however, to suggest that Mr Pearce did not know that Waller Legal was not pursuing his ‘formal’ economic loss claim. Ms Zelez’s notes and his own evidence demonstrate that he was aware that Waller Legal was not pursuing the claim. Mr Pearce understood exactly how Waller Legal was endeavouring to pitch his economic loss claim, however it should have obtained his clear instructions not to pursue an economic loss claim.
Did Waller Legal advise Mr Pearce correctly as to any obligation on his part to make DHS repayment from any settlement?
579	Mr Pearce contended that the advice he was given by Waller Legal led him to believe Centrelink would take half of any gross economic loss claim, which ‘derailed’ his desire to proceed with an economic loss claim. 
580	It was argued that I should accept Mr Pearce’s version of the discussions with Mr Seccull prior to the ISC. It was also submitted that Dr Waller conceded that advice was wrong, and accepted that, as at 2016, Waller Legal was aware that the advice was incorrect and Mr Pearce would not have been liable for any repayment to Centrelink. It was then said that Ms Zelez had ‘ample opportunity’ to correct the advice at or after the ISC but failed to do so. 
581	I have already recorded my finding of fact in relation to the nature of the advice given to Mr Pearce in relation to DHS repayment and my acceptance of parts of his account. A reasonable solicitor in Waller Legal’s position would have acted in the same way as Ms Zelez did in handling Mr Ure’s claim. An inquiry of DHS should have been made to determine prospective repayment — if only indicative. It was likely, if not certain, that the result of that inquiry would have been a nil repayment. 
582	As Dr Waller ultimately conceded, there was close to no chance of DHS being required to be repaid, given Mr Pearce’s age at the time of the abuse.
583	Waller Legal, in relation to the misleading conduct claim, relied upon correspondence in 2015 between Dr Waller and Ms Angela Sdrinis in relation to potential DHS repayment generally and its uncertainty until the claim is resolved. But that is no answer as Ms Zelez’s conduct of Mr Ure’s claim and Dr Waller’s concession demonstrates.
584	It is not necessary to examine Mr Seccull’s role in any depth. The question is: what should Waller Legal have told Mr Pearce? This was a firm of solicitors who specialised in work in this area and had in the past examined whether a client’s DHS payments were repayable or would result in a preclusion period. This was standard fare for a personal injuries lawyer with clients who had received Commonwealth benefits in the past. If, as seems to be the case, the first time upon which the question of DHS repayment was raised with Mr Pearce was at the conference with Mr Seccull a week before the ISC, and subsequently at the conference on the morning of the ISC, then the advice given to Mr Pearce as to DHS repayment was wrong. 
585	A reasonable solicitor in the position of Waller Legal, as an expert in this area, armed with its knowledge as to Mr Pearce’s receipt of DHS payments and its handling of other claims involving DHS repayment would have told Mr Pearce prior to settling his claim that it was highly unlikely that he would have to make any DHS repayment out of any settlement of his claim.
Should Waller Legal have provided Mr Pearce with a copy of the Calderbank offer made by MSC?
586	Mr Pearce submitted that Waller Legal’s failure to provide Mr Pearce with a copy of the Calderbank offer and to inform Mr Pearce that MSC had not raised liability as a key issue in that offer breached its duty of care and the implied terms of the retainer. 
587	To some extent I have addressed this earlier in relation to the apparent failure of Waller Legal (after receipt of the Calderbank offer) to adequately explain to Mr Pearce the basis upon which the offer was made. 
588	Dr Morrison opined that Waller Legal should have provided Mr Pearce with a copy of the Calderbank offer. He said that in his experience in other jurisdictions it would be ‘fairly fundamental’ and that it would also require providing assistance to interpret the contents, particularly, in circumstances where a plaintiff may not necessarily appreciate that ‘serious concessions’ were made, as in the present case. Mr Ellis was not called to dispute this proposition. In light of my reservations as to Dr Morrison’s expertise in matters of solicitors’ practice in this State, I am hesitant to accept his opinion. However, as will become apparent, it accords with my own assessment of the situation.
589	There is no doubt that Waller Legal, through Ms Zelez and Dr Waller, spent considerable time discussing the effect of a Calderbank offer and then raised it with Mr Pearce. 
590	I have no doubt that Mr Pearce understood generally the costs ramifications of the offer and non-acceptance in the context of his claim. On the other hand, as just mentioned, I am by no means certain (and Ms Zelez’s absence adds to that uncertainty) that the basis for the Calderbank offer — as set out in the CBP letter — was explained to him adequately. The letter containing the offer made it clear that it was made solely on the basis of an assessment of his claim for damages and its contents went directly to why Mr Pearce should consider accepting the offer on that account. As has been mentioned on several occasions, it contained no reference to the Ellis defence and associated complications. By January 2017, it ought to have been clear to Waller Legal that Mr Pearce, whilst keen to have his claim resolved, was also ambivalent about what course he should take.
591	In those circumstances, a reasonable solicitor with Waller Legal’s expertise would have provided Mr Pearce with a copy of the letter — which would have enabled him to understand exactly the basis upon which MSC made its offer.
592	I have thought quite hard about this conclusion and tried to avoid looking at Waller Legal’s actions in hindsight, but rather as to what a reasonable solicitor in 2017, with a client such as Mr Pearce, would have done. I do not intend, and should not be taken to, set any hard and fast rule about the provision of a Calderbank letter to a client in each and every circumstance. However, as a Calderbank letter will usually contain the opposing side’s contention as to why the offer should be accepted, I cannot see any good reason not to provide it to the client — unless it was perceived that it would unduly confuse a client. This was not such a case.
Did Waller Legal act unreasonably in advising Mr Pearce to settle for $140,000 inclusive of costs rather than advising him to proceed with the claim?
593	This question cannot be answered in a binary fashion. For the reasons I have set out, I am satisfied that Mr Pearce has established that several aspects of the advice given to him by Waller Legal were wrong and, also, that there were a number of matters which should have been the subject of advice. 
594	Mr Pearce argued that Waller Legal should have advised him to initiate proceedings against the MSC, rather than settling as he did. Had that occurred, he says that the most likely outcome is that his claim would have settled in mid to late 2018 prior to trial for a substantially higher sum. 
595	Mr Pearce submitted that Waller Legal should have assessed and quantified his economic loss claim and then given him the following advice:
b.	Having assessed the value of Mr Pearce’s economic loss claim, properly advise him as to the value of his economic loss claim, distinct and separate from Mr Pearce’s common law claim in damages for pain and suffering and what he may be able to achieve either at the trial or at an informal settlement conference;
c.	advise Mr Pearce that the lack of tax returns, and the payment of certain jobs with cash-in-hand, did not preclude him from claiming economic loss but could impact the amount recovered;
d.	claiming economic loss was highly unlikely to result in any obligation by Mr Pearce to repay to Centrelink any social security monies he had received, or preclude him from future benefits and should not dissuade him from claiming economic loss;
e.	advise Mr Pearce to initiate legal proceedings against the MSC;
f.	advise Mr Pearce that the Ellis defence was not a bar to issuing proceedings because the Missionaries had undertaken not to rely on it and would provide indemnified defendants to be sued;
g.	provide the Defendant’s Calderbank letter to Mr Pearce and advise him as to its contents;
h.	only act on the instructions of a client.
596	However, it is the entirety of the advice concerning settlement of his claim that ought to have been given to Mr Pearce by a reasonable solicitor in Waller Legal’s position in late 2016 and early 2017 that needs to be considered. This is necessary as it is only then that it can be determined whether that advice would have led to a different result. As was noted by the High Court in Badenach: ‘[i]n addition to the choices available to the client there would have been other matters put to the client for his consideration’. 
597	I think that in late 2016 and early 2017, a solicitor acting reasonably in Waller Legal’s position would have given Mr Pearce the following advice.
598	First, that whilst the Ellis defence and associated problems with identification of an appropriate defendant and recovery from MSC might still be issues, there was no indication that MSC would rely upon such defences nor that it would be impossible to identify a defendant against whom a claim may be issued and litigated.
599	The Calderbank offer (which should have been provided to Mr Pearce) confirmed what had occurred at the ISC: that MSC at that time was treating Mr Pearce’s claim as being confined to the assessment of damages.
600	It was also reasonable to assume that ultimately CBP would nominate a defendant or defendants against whom a claim could be litigated and recovery effected.  
601	Second, that Mr Pearce had a viable claim for economic loss. He should have been advised that the opinions of Dr Triggs and Ms Whetton supported such a claim, and it could be reasonably anticipated that a further supporting opinion (or opinions) could be obtained. Also, it could be anticipated that evidence of his family and friends would buttress an assertion that his psyche had been significantly affected by the abuse. However, these factors needed to be balanced against the following matters:
(a)	Mr Pearce’s overall reliability and credibility before a judge or a jury;
(b)	Mr Pearce’s inconsistent and undocumented work history including his failure to pay income tax unless ‘on the books’; 
(c)	The contradictory report of Dr Neill, which MSC could rely upon at a trial;
(d)	The lack of any persuasive evidence as to his likely career path; and
(e)	The likelihood that if a financial loss report (such as that which Mr Thompson prepared) was obtained in the course of preparation for trial it may have little impact given the other forensic problems associated with the economic loss claim generally.
602	Third, that it was highly unlikely that Mr Pearce would have to make any DHS repayment given his age at the time of the abuse, the manner by which repayment was calculated and that it was possible to obtain an estimate from DHS as to likely repayment by Mr Pearce of DHS payments made to him over the years. Assuming such inquiries had been made, then he should have been told that the likelihood of any repayment was remote. 
603	Fourth, that Mr Pearce’s economic loss claim had a value which was extremely difficult to assess, particularly as his case was likely to be tried before a jury and there was a real prospect that, given the integrity and credit issues surrounding his work in the past, any award would be modest. 
604	Fifth, that if Mr Pearce initiated a proceeding which then went to Court and he received an award for an amount less than the MSC’s Calderbank offer, then it was likely that he would be liable for MSC’s costs of the proceeding.
605	Sixth, that Mr Pearce’s case would take up to eighteen months to get to trial, although a mediation may be held at any time in the process.
606	Finally, having taken all those matters into consideration, it was up to Mr Pearce to determine whether he wished to litigate the claim or accept the offer.
607	It follows that I am not satisfied that Mr Pearce would have been given definitive advice to proceed with his claim and institute a proceeding on the basis that his economic loss claim was worth a million dollars, as he asserts. However, that does not preclude him establishing causation on the basis that, after considering all the advice (as to the pros and cons of litigation as I have just set out), he would have instructed his lawyers to reject the offer and to proceed to litigate his claim. 
Causation
Principles
608	The Wrongs Act governs the question of causation in respect of Mr Pearce’s claim in negligence and whether any of the breaches that I have identified of Waller Legal of its duty of care have led to any loss and damage on the part of Mr Pearce.
609	Section 51(1)(a) requires Mr Pearce to establish factual causation — that Waller Legal’s negligence was a necessary condition of the occurrence of his loss. Section 52 of the Act then provides that he bears the burden of proving any fact relevant to the issue of causation on the balance of probabilities. His case succeeds if it is proved on the balance of probabilities. 
610	The principles with respect to proof of a lost opportunity and the valuation of a lost opportunity in a tort claim are well established. In Sellars v Adelaide Petroleum NL, Mason CJ, Dawson, Toohey and Gaudron JJ stated:
	[T]he general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has suffered loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities.
611	It is helpful, here, to examine briefly the approach taken by higher courts in a few cases involving solicitors’ negligence and the issue of causation.
612	In Sykes v The Midland Bank Executor and Trustee Co Ltd, the plaintiff client was a firm of architect and surveyors who alleged that, as a result of the solicitor failing to draw their attention to a term of an underlease, they would have not entered into it or would have endeavoured to negotiate different terms. The Court of Appeal of England and Wales held that the plaintiffs failed to prove that, if had they been given reasonable advice, they would have acted any differently and therefore the plaintiffs recovered only nominal damages for breach of contract.
613	In Badenach, the plaintiff failed to prove that there was any loss of a valuable opportunity by reason of the solicitor’s alleged negligence in failing to give appropriate advice to the testator. It was not demonstrated that the testator (the solicitor’s client) would have acted any differently if the proper advice had been given.
614	The High Court explained the difference between establishing the existence of a loss of a valuable opportunity and its evaluation in assessing damages:
	It has been explained that to speak of loss as the loss of a ‘chance’ distorts the question of causation. It involves the application of a lesser standard of proof than is required by the law and, it follows, by s 13(1)(a). It confuses the issue of the loss caused with the issue of assessing damages which are said to flow from that loss. In that assessment a chance may be evaluated.
	The respondent’s case on causation is not improved by seeking to equate the chance spoken of with an opportunity lost. It may be accepted that an opportunity which is lost may be compensable in tort. But that is because the opportunity is itself of some value. An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided.
It remains necessary to prove, to the usual standard, that there was a substantial prospect of a beneficial outcome. This requires evidence of what would have been done if the opportunity had been afforded. The respondent has not established that there is a substantial prospect that the client would have chosen to undertake the inter vivos transactions. Therefore, the respondent has not proven that there was any loss of a valuable opportunity.
615	I have accepted that Waller Legal’s advice to Mr Pearce as to settlement of his claim for economic loss was negligent in several aspects and that Mr Pearce has, by reason of the settlement, lost the opportunity to pursue an economic loss claim. However, as Badenach demonstrates, proof of those two things is not enough. What the authorities establish, quite plainly, is this: Mr Pearce must demonstrate that this loss (i.e. the opportunity to litigate a claim for economic loss) has been occasioned by the conduct of Waller Legal. In satisfying the onus prescribed by the Wrongs Act, Mr Pearce must demonstrate that with the right advice, he would have acted differently. The test is subjective not objective as McHugh J explained in Rosenberg. 
616	So, in practical terms, Mr Pearce must establish on the balance of probabilities that properly advised (as described above at [597]–[606]) he would have rejected the MSC offer of $140,000 to settle the claim and have instructed Waller Legal, or another firm, to commence a proceeding in respect of the abuse.
617	As the Full Court of the Federal Court said in Jadwan Pty Ltd v Rae & Partners (a firm):
	To establish that fact [the consequence of the alleged negligent advice] required proof of a past hypothetical on the balance of probabilities, involving the evaluation — at a hypothetical level — of manifold and interdependent facts and circumstances. In evaluating those facts and circumstances it is necessary to stand back and consider whether this Court is satisfied of the ultimate proposition by looking at the overall effect of the evidence.
The counterfactual scenarios 
618	Mr Pearce advanced two counterfactual hypotheses flowing from Waller Legal’s asserted negligence which it was said establish the necessary link between Waller Legal’s negligence and his asserted loss of opportunity.
619	The first being, if the Ellis defence was not a legitimate barrier to the claim, but for the negligent, or misleading or deceptive advice, Mr Pearce would have issued proceedings, and either settled his claim or successfully litigated his claim in 2018: 
	With proper advice, it is clear that Mr Pearce would have given instructions to commence legal proceedings against the Missionaries. The evidence in the WL file and Mr Pearce’s evidence unequivocally demonstrates this.
620	The second being, if the Ellis defence was a legitimate barrier to the claim, but for the negligent, or misleading or deceptive advice regarding the impossibility of claiming economic loss, Mr Pearce would have settled his claim for a low sum and his deed would have been set aside in 2022 by operation of the Limitations of Actions Act. He would then have recovered the value of his common law claim through a settlement in May 2023. Within this counterfactual, it was argued that it was irrelevant whether the Ellis defence prevented him from issuing proceedings or specifically claiming economic loss. Had the impact of the Ellis defence, in either manner, been clear on the file or adduced through Dr Waller’s evidence, Mr Pearce would have successfully set aside his deed in full in 2022.
621	Waller Legal’s core proposition was that it was not necessary to advance a counterfactual as its advice was reasonable. However, if there was negligence on its part in and around that advice, Waller Legal submitted that the Court should accept the premises of the following question in Mr Pearce’s cross-examination and thereby accept Mr Pearce’s answer as reflective of the ‘true’ counterfactual.
Q:	If you were told that you would probably lose, and that if you lost you’d be liable for the other side’s costs, and if you won you’d receive a larger sum of money, you would have chosen to sue [at] common law?
A:	If it was presented to me like that, no, I wouldn’t have proceeded.
622	Mr Pearce’s first counterfactual is said to be a logical causal consequence of the findings of breach. However, as Mr Pearce’s submissions demonstrate, it is couched on the basis that the content of the reasonable advice that should have been given by Waller Legal was directed solely to pursuing litigation: Mr Pearce would have rejected the offer of $140,000 and issued a proceeding in 2017 which would subsequently have been the subject of a settlement or a verdict. As I have just explained when dealing with the question of the reasonable advice that should have been proffered by Waller Legal, this is not the correct approach. It is the whole of the advice that would have been given by a competent solicitor in the shoes of Waller Legal as to the acceptance or rejection of the MSC offer that needs to be considered.
623	Mr Pearce’s second counterfactual is byzantine. Insofar as it can be understood, it is couched in speculation and impermissible reasoning. 
624	Waller Legal’s counterfactual, as I shall explain, is also not without fault. Its, as with Mr Pearce’s first counterfactual, focus is too narrow — concentrating solely on the adverse consequences of rejecting the MSC offer.
Proposed tender of the reasons of Forbes J
625	Before turning to examine the merits of the various counterfactuals, I need to deal with the remaining evidentiary issue: the proposed tender by Mr Pearce of the reasons of Forbes J on the setting aside application — and particularly that part relating to her Honour’s refusal to set aside the economic loss part of the settlement. This was said to be relevant to the second counterfactual.
626	Mr Pearce submitted that her Honour’s reasons were relevant to the following facts he wished to prove by way of tender of the reasons:
The facts that Mr Pearce wishes to prove by the tender of Justice Forbes’ reasons are:
(a)	that her Honour’s decision to only set aside the deed in part was based on the absence of evidence that economic loss was not claimed because of the difficulty in nominating a viable defendant; and
(b)	that her Honour had no information as to the reasons why Pearce was advised not to make a claim for economic loss. There was certainly nothing to suggest that the claim was confined as it was because of the risk of a legal barrier posed by a potential Ellis defence.
627	Mr Pearce argued that the judge’s reasons contain findings as to the existence of facts relevant to the issue in this proceeding — the outcome of the setting aside application (i.e. Mr Pearce’s deed was set aside in part) and the judge’s rationale for the order giving effect to that outcome. Within this he asserted that her Honour had no information as to the reasons why Mr Pearce was advised not to make a claim for economic loss.
628	Mr Pearce then submitted that the negligence and/or the misleading conduct of Waller Legal caused the adverse finding to be made by Forbes J. And then it was said that the causal consequences of the negligence could have been avoided or ameliorated by the chance offered to Dr Waller to assist by giving evidence in Mr Pearce’s setting aside application, including, as to any link between the Ellis issue and the failure to claim economic loss.
629	In oral submissions, it was also argued that the insertion of the exclusion of the economic loss claim within the settlement agreement (at the request of Ms Zelez) was another instance of negligence that led to the setting aside application on that head of damage failing.
630	Waller Legal resisted the application. It contended that the relevant parts of the reasons are limited to what was before the Court in that proceeding. It does not purport to be a complete examination of everything known or told to Mr Pearce by Waller Legal. Rather, the judge was necessarily limited to what evidence Mr Pearce chose to produce.
631	Accepting, for the moment, that it is open to this Court to admit her Honour’s reasons into evidence, then I fail to see what they have to do with the issues in this case which relate to Waller Legal’s handling of Mr Pearce’s economic loss claim in 2016 and 2017. I remain totally bemused by the breadth of the assertion and its lack of any logical or legal foundation.
632	It is tolerably clear that the application to set aside the economic loss part of the settlement failed on account of the lack of sufficient evidence to enable the judge to reach an affirmative conclusion that the economic loss part of the claim was abandoned due to a reason connected with the Ellis defence.
633	Prior to the setting aside application, the file of Waller Legal was provided to Mr Pearce’s lawyers, Rightside, which enabled Mr Pearce to produce any documents from the file that he wished to rely upon at the hearing of that application. Mr Pearce did not subpoena Dr Waller. Unsurprisingly, Dr Waller said that had she been subpoenaed, she would have given evidence.
634	It then appears to be part of Mr Pearce’s extraordinary hypothesis that notwithstanding the above, Dr Waller’s failure to volunteer her services as a witness in 2022 was negligent. Dr Waller was no longer retained by Mr Pearce and owed him no duty to do so. 
635	It should also not be forgotten that during the setting aside application, Mr Pearce gave false evidence as to the advice (or asserted lack of it) that he received from Waller Legal and Mr Seccull as to his economic loss claim. 
636	I accept the submission of Waller Legal that, taken at its highest, the judgment in the setting aside application amounts to Forbes J concluding that she did not have sufficient material before her to be satisfied that the Ellis defence was a cause of Mr Pearce not claiming economic loss. The absence of material on that application is irrelevant to the issues in this proceeding. 
637	The reference to economic loss being excluded in the settlement agreement as argued by counsel for Mr Pearce is also irrelevant — it had nothing to do with the ultimate outcome of the setting aside application which turned on the material adduced before the judge relating to Mr Pearce’s acceptance of the MSC offer. Nothing done by Waller Legal in 2022 or in 2016 or 2017 led to the setting aside application failing in part; if it arises from any error, then it is the way in which Mr Pearce elected to conduct his setting aside application. 
638	The reasons should not be admitted. I conclude by mentioning that in reaching this decision I have not adverted to the provisions of ss 91 or 92 of the Evidence Act and their impact upon the proposed tender.
Analysis 
639	It is convenient to deal initially with Mr Pearce’s second counterfactual. This can be done very briefly. The substance of this counterfactual (as far as it can be discerned), is based on the proviso that the Ellis defence was a ‘legitimate barrier’ to Mr Pearce’s claim. I have accepted that in the context of MSC’s conduct of the defence of Mr Pearce’s claim Ellis was not a barrier to the pursuit of his common law claim.
640	In any event, I accept Waller Legal’s contention that Mr Pearce’s failure to have the settlement set aside could not constitute a reasonably foreseeable consequence of any breach of duty by Waller Legal during the time of its retainer by Mr Pearce. That is because the relevant legislation (ss 27QA, 27QB, and 27QD of the Limitation of Actions Act) which provided the basis to apply to set aside the settlement did not exist in early 2017 and could not have been reasonably anticipated by it.
641	Finally, as the discussion relating to the admission of the reasons of Forbes J demonstrates, it is impossible to see how anything done or not done by Waller Legal had any bearing on the result of the setting aside application and the consequent refusal by Forbes J to set aside the settlement of the economic loss component. 
642	Mr Pearce’s second counterfactual cannot be entertained.
643	Returning to the remaining counterfactuals and determining whether causation is established by Mr Pearce. This, as the authorities I have referred to demonstrate, undoubtedly, is one of the most difficult exercises a court can, in tort jurisdiction, undertake. In both medical and professional negligence cases, endeavouring to determine the state of mind of an individual faced with a number of hypothetical contingencies and choices they may have or may not have made on the basis of hypothetical advice significantly different to that given at the relevant time (and often several, if not many years, prior to any judicial evaluation) is daunting.
644	Mr Pearce relied upon the following extracts from the Waller Legal file to support his first counterfactual:
(a)	Mr Pearce’s desire to proceed with his civil case, in the middle of criminal proceedings against Brother Mamo.
(b)	in a telephone conversation with Ms Zelez on 20 December 2016, in which there was discussion of the Calderbank offer, Mr Pearce stated that he thought he would ‘present well before a jury’ and that ‘he’d happily gamble that’ — he was ‘willing to gamble that to walk away w[ith] what he thinks’.  
(c)	in a telephone conversation with Ms Zelez and Dr Waller on 13 January 2017, Mr Pearce is recorded as stating that he is ‘willing to risk it’ (i.e. proceed to Court).
645	Mr Pearce contended that, notwithstanding that he did not know what his case was worth, that he had not been told about the contents of the Calderbank letter, the evidence in relation to the public statements of the Catholic Church, and that the Centrelink advice was wrong, he was nevertheless ‘demonstrating clearly an appetite to litigate’.
646	Mr Pearce also relied upon his own evidence as to his intentions if given appropriate advice. During his examination-in-chief, Mr Pearce was asked what he would have said if Waller Legal had advised him that he had an economic loss claim worth something in the range of $1 million but he would have had to issue a court case to get it or to get some of it, Mr Pearce told the Court that he would have said, ‘Go for it.’
647	When asked why he would have said ‘Go for it’, he stated the following:
	Because that would be so beneficial for myself and my family as a way of um – as a way of compensating me for the trauma and suffering that I’d had to endure because of the abuse and the lack of career opportunities, obtaining a higher education. I would have had – I could have – it would have gone a long way into saying sorry and compensating. Further than that, the children didn’t – didn’t ask for this situation. They deserved better … my children deserve better. You saw the photo up there when I was nine. Potentially how life would have gone. It couldn’t have been any far – any more opposite. You couldn’t make that up. It’s just dreadful. So the opportunity of going to court before a judge where they couldn’t hide anything, everything would have to be put on the table for a judge to decide, yes, that – if that money was possible then I would have given clear direction to go into court.
648	Mr Pearce was also asked whether he would have maintained that position even if he was told that it was going to be a really tough case to win. He responded as follows: ‘I’ve faced adversity all my life. It couldn’t be any harder than some of the … trauma I’ve faced … I wouldn’t have shied away from it’.
649	When asked if he would have still gone to court, even if his economic loss claim was worth less than a million dollars but still a substantial amount, Mr Pearce said: ‘I would’ve gone to court. I would’ve trusted the process of the court and the judge to make a decision rather than the defence lawyers’.
650	It was also argued by Mr Pearce that despite his compromised physical and mental health, he has shown significant capacity and tenacity in legal proceedings — as revealed by the subsequent proceeding against MSC, including the setting aside application.
651	Finally, it was said that Mr Pearce’s physical health (which was said to be a driver for his desire to resolve the case) had improved by the time he settled the case — and particularly that of his Hepatitis C infection and liver condition.  
652	As previously mentioned, Waller Legal, in response, argued that the counterfactual posited by Mr Pearce was too narrow and missed an essential point. It said that the ‘true’ counterfactual was reflected by the question and answer in his cross-examination that I set out above.
653	Waller Legal also emphasised Mr Pearce’s desire to settle his claim — expressed on multiple occasions by Mr Pearce to Mr Zelez. It argued that Mr Pearce had been urging Waller Legal to conclude the matter quickly, from almost the first day of engaging the firm. He had been unwell at different stages of the retainer and expressed clear frustration in his correspondence about how long the matter was taking to resolve. If a common law claim had been a realistic option and had been commenced sometime in early 2017, Mr Pearce would have been informed of the likely timeline (with no resolution for many months thereafter) and such timeline would not have achieved Mr Pearce’s desire to wrap the matter up quickly. In those circumstances, he would have accepted the MSC offer of $140,000.
654	Mr Pearce’s first and remaining counterfactual is too narrow in that it focuses on the parts favouring rejection of the MSC offer (no DHS repayment, no Ellis defence and a viable economic loss claim). This avoids a number of matters that would have been conveyed to Mr Pearce and would have pointed to the desirability of Mr Pearce settling his claim. As framed, this counterfactual invites consideration of only one side of the coin and ignores entirely the downside of proceeding with the claim in the face of the Calderbank offer.
655	Waller Legal’s so called ‘true counterfactual’ suffers from a similar failing — it focuses solely on the spectre of an adverse costs order in the event of not overcoming the Calderbank offer and ignores those parts of the advice that would have prompted Mr Pearce to push on to litigation.
656	The true test is whether given the entirety of the advice I have set out, Mr Pearce has established that it is more probable than not that he would have proceeded with the claim.  
657	As it is necessary to determine the hypothetical state of mind of Mr Pearce in early 2017, the best guide is to be found in the contemporaneous statements (if available) made by him from which one may draw an inference as to what course he would have adopted given the right advice. Such an approach conforms with the usual principles of evidence and avoids, it is to be hoped, entering the realm of speculation. In this case, Ms Zelez’s notes and the correspondence between Mr Pearce and Ms Zelez provide a reasonable basis upon which to undertake the exercise.
658	I draw little, if any, comfort from the after the event statements of Mr Pearce given in evidence. Not only do I think that the underlying premise of a number of the questions asked of him were ill-founded but, given my views as to his credibility, I think his evidence now as to what he would have done can be discounted. Indeed, even if Mr Pearce was a credible witness, problems arise where evidence as to a hypothetical course of conduct is given by a witness with the benefit of hindsight knowing where his or her interests lie.
659	I have just set out several of the contemporaneous statements relied upon by Mr Pearce and recorded in the Waller Legal file. There are others which demonstrate that mindset — a desire to seek a sum greater than $140,000 and to prepare for a long process ‘so long as’ he has ‘vindication and compensation’.
660	On the other hand, Ms Zelez, and later Mr Seccull, in 2016 emphasised to Mr Pearce the difficulties surrounding his economic loss claim — not necessarily confined to any question of DHS repayment. In June 2016, Ms Zelez records as part of a discussion with Mr Pearce: the ‘trouble w[ith] hospitality is cash’ and ‘as it appears — he is a ghost’. It is also noted in respect of any argument in relation to the impact on his education caused by the abuse that that link might be a stretch to prove. Ms Zelez described his economic loss claim as ‘crystal ball gazing’ and told him that she would leave quantum to the barrister. 
661	Throughout 2016, Mr Pearce expressed the desire, communicated to Ms Zelez regularly, that he wished to resolve the case. For instance, in July, he was insisting on a settlement to ‘place all this behind [him]’, and that he wanted it ‘settled as soon as humanly possible’. In October, he emailed Ms Zelez, saying that he was ‘looking forward to this being over’. 
662	In the weeks following the ISC (and prior to the Calderbank offer), he remained insistent upon the settlement of the case, however he expressed mixed sentiments from around Christmas in 2016. On 20 December 2016, Ms Zelez’s notes of a telephone conversation with Mr Pearce on that date record that he had said that there was ‘no way’ he would accept the offer at that time of $130,000, felt like he could ‘move on if fair’, and that he would ‘happily gamble that’ but noted that he would be ‘guided by [Waller Legal]’ as it was ‘up to [them] to fund it’. On 26 December 2016, Mr Pearce emailed Ms Zelez saying he was ‘[e]ager to put all this behind [him]’ and instructed her to make a counteroffer of $210,000 with the hope it could be ‘done by end of January’.
663	In an email of 11 January 2017 (two days before the conference with Dr Waller), he again exhibited concern as to whether to settle or proceed, writing that he understood ‘what battles [he] face[d]’ and that he needed to convince Ms Zelez/Waller Legal ‘first above anyone’, and that while it was in everyone’s interest for him to settle quickly and he understood that, ‘but it is me and I want what I want’. 
664	It is also apparent that in the telephone conference with Dr Waller and Ms Zelez on 13 January 2017, there was wide ranging discussion about the offer (at that time, $130,000) and Mr Pearce was, at least to some extent, equivocating about acceptance. Ms Zelez’s note of the conference included reference to the Calderbank offer and Catholic clergy abuse cases with the note ‘never been a successful sexual abuse case in Australia — reason for that — current state of the law stacked against plaintiff’. It contained numerous notes as to Mr Pearce’s state of mind including ‘if push comes to shove difficult to prove in court. — Probably correct. // Gary agreed… Gary is realistic, not a dreamer… Pleased where it’s @. Not pleased with figure… Gary would be willing to risk it. But we don’t think it’s gonna happen — Gary knows we’re willing to give it a crack… wouldn’t be foolish enough to not get on board… thanks for telling me like it is… he feels like ^ runaway train’.
665	On 22 February 2017, in an email to Ms Zelez, Mr Pearce expressed real concern over the delay in effecting the settlement. 
666	Notwithstanding, the shifting sands of Mr Pearce’s intentions in terms of settlement or litigation, I am satisfied that during the time from the ISC (November 2016) to the time that he instructed Waller Legal to settle his claim (February 2017), Mr Pearce had a level of dissatisfaction both with the process and with the level of the offers being made by MSC. I think that at the time of the settlement, he was unhappy with the amount he ultimately accepted, but based on the advice he received, determined to accept it. 
667	I am also satisfied that Mr Pearce was convinced that he possessed a viable economic loss claim and that the two matters which significantly influenced his decision to accept the offer of $140,000 were: first, the prospect of having to make a DHS repayment, which militated against a claim for economic loss which he believed he possessed; and second, the strength of the Ellis defence (as he perceived it) which had been reinforced by Dr Waller in the course of the 13 January 2017 telephone discussion. 
668	To the contrary, if he was told (as he should have been) —
(a)	that the Ellis defence was, so far as could be reasonably determined at that stage, not being relied upon by MSC and that the only issue was the assessment of his damages; and
(b)	that his economic loss claim was viable, and although particularly difficult to assess, had medical evidence to support it; and 
(c)	that, in all likelihood he would not have to repay any amount to DHS out of an economic loss component;
then each of these factors would have encouraged him to proceed with his claim despite his countervailing desire to resolve the claim as soon as possible. 
669	Notwithstanding the other matters which point towards Mr Pearce accepting the offer of $140,000, and even without a firm estimate as to the worth of his economic loss claim, I think it probable that he would have rolled the dice. He would have rejected the MSC offer and instructed Waller Legal to proceed with his claim, including the economic loss component in anticipation of achieving an increased offer at a mediation or settlement conference.
670	It follows that I am satisfied that Waller Legal’s negligence deprived Mr Pearce of a valuable opportunity — namely, to pursue the economic loss component of his common law claim against MSC.
Damages
Principles 
671	It was not in dispute that if negligence and causation were established by Mr Pearce, then he had sustained the loss of a valuable opportunity. The remaining issue is the assessment of that loss.
672	Although the decision in Sellars related to s 52 of the Trade Practices Act 1974 (Cth), it is consistent with the decisions of the High Court in both Malec v Hutton and Commonwealth v Amann Aviation Pty Ltd. The principles derived from these decisions have been applied regularly by the High Court and intermediate appellate courts in subsequent contract and tort cases.
673	The damage identified by the plurality of the High Court (Mason CJ, Dawson, Toohey and Gaudron JJ) in Sellars was: 
	the loss of the opportunity or chance of securing commercial benefits which entry into the Pagini agreement and completion of it would have brought. The lost opportunity or chance, assuming it to have value, is a form of economic loss. 
674	In a separate judgment in Sellars, Brennan J said as follows:
	Provided an opportunity offers a substantial, and not merely speculative, prospect of acquiring a benefit that the plaintiff sought to acquire or of avoiding a detriment that the plaintiff sought to avoid, the opportunity can be held to be valuable.
And then said:
	To prove the substantiality of a prospect of acquiring a benefit or of avoiding a detriment and what would have been the plaintiff’s actions if the opportunity had been offered, it would usually be necessary to tender evidence to establish the plaintiff’s objectives and the contingencies in the way of their achievement. Evidence of that kind will bear upon both the existence and the value of the lost opportunity.
And:
	Although the issue of a loss caused by the defendant’s conduct must be established on the balance of probabilities, hypotheses and possibilities the fulfilment of which cannot be proved must be evaluated to determine the amount or value of the loss suffered. Proof on the balance of probabilities has no part to play in the evaluation of such hypotheses or possibilities: evaluation is a matter of informed estimation.  
675	The determination the value of such a loss as explained in Sellars was addressed recently by the High Court in Talacko v Talacko as follows:
	In the second category, the existence of a loss is sufficiently shown by proving that the tort caused a permanent impairment of the value of the plaintiff's existing right. It is enough that the right is ‘something of value’ and that its value is diminished or lost. An example of loss in this category, given by Brennan J in Sellars, is a plaintiff’s cause of action which becomes statute barred by reason of the negligence of a solicitor. The right may not have been lost but its value has declined, often to nothing, by the expiry of the limitation period. Damages are assessed as the amount by which the value of the right has diminished from the value it would have had if the acts comprising the tort had not been committed. This quantification of loss, by reference to events which did not happen, has been said to have ‘nothing to do with loss of chance as such. It is simply the judge making a realistic and reasoned assessment of a variety of circumstances in order to determine what the level of loss has been’.
Analysis
676	The difficulties in assessing damages in the context of a lost opportunity to pursue a piece of litigation were highlighted in the decision of the Queensland Court of Appeal in Lewis v Hillhouse. In that case, the appellant alleged that his lawyers had been negligent in the conduct of an appeal against his criminal convictions by failing to advance an argument that particular evidence had been wrongly admitted. Keane JA (with whom McMurdo P and Wilson J agreed) rejected the claim on the basis that it amounted to a collateral attack on the appellant’s conviction. However, Keane JA also addressed the question of whether the alleged breach (if proved) would have led to a different result and said as follows:
	In the present case, unless the appellant is able to show that the evidence admission point was a good point, ie that it would have been accepted and acted upon by the Court, he will have failed to show that he has lost anything of value. An opportunity to litigate, considered in the abstract and without regard for the prospects of a favourable outcome, is not something of value. Rather, it is an occasion of confrontation, conflict and expense. No litigant suffers any real loss by losing the opportunity to run up dry gullies.
677	Whilst this passage is directed to the question of whether a loss of opportunity had been proved (as opposed to the assessment of damages as a result of the established lost opportunity), it helpfully illustrates the proposition that endeavouring to assess the value of the lost opportunity caused by a failure to litigate can be fraught with problems. This is all the more so in this case, where Mr Pearce’s economic loss claim although having supportive medical evidence was beset with forensic difficulties.
678	Mr Pearce submitted that, had a common law claim been issued in first half of 2017 following the exchange of offers between the parties and the exhaustion of the ADR process and the drafting of a statement of claim, the most likely outcome is that Mr Pearce’s claim would have settled in mid to late 2018 prior to trial. Waller Legal did not argue to the contrary.
679	I accept this submission. It reflects not only common practice and experience in this Court but also accords with Mr Pearce’s expressed desire on multiple occasions in 2016 to resolve the claim as soon as possible. Whilst there was a remote chance that the case might have proceeded to trial, it was vastly more likely that it would settle. On this issue, I agree with Dr Morrison and Dr Waller, and I proceed on that basis.
680	Mr Pearce relied on the evidence of Dr Morrison that at a mediation in 2018, it would have been reasonable to settle for a total of $1,140,000 for past and future economic loss, made up of $660,000 for past economic loss (lost income and superannuation) and around $480,000 for future economic loss. Dr Morrison then discounted that by $40,000 arriving at ($1.14 million). Then it was said that in addition to Dr Morrison’s figure, Mr Pearce would be entitled to interest for the loss of the use of that sum — Mr Thompson used a simple 4.5% interest rate which over six-and-a-half years is about $325,000, a total of about $1.465 million. Mr Pearce’s submission was that a settlement number for his loss of earning capacity claim was in the range of about $1.4 million. 
681	I have not accepted Dr Morrison’s opinion on this issue and have rejected Mr Thompson’s calculations. I have taken into account all the matters adverted to in Mr Pearce’s submissions relating to how a jury would have treated Mr Pearce. For the reasons I have expressed as to Mr Pearce’s credibility and reliability, I reject the frankly ludicrous suggestion that the ‘general and unspecified litigation risk’ could be assessed at 10–15%. I think the risks are all at the other end of the scale. The perils relating to the prosecution of Mr Pearce’s economic loss claim were significant and this was correctly appreciated by both Ms Zelez and Mr Seccull and need not be restated.
682	In Mr Pearce’s written submissions, it was argued that there were factors which weighed in favour of a ‘modified approach’ to assessment in circumstances where Mr Pearce had failed to pay tax or to file tax returns. In particular, it was said that his failure to pay tax was at least in part ‘the consequence of the substantial and irretrievable impact of the abuse on his developmental trajectory’. There is not a shred of evidence to support this proposition. Whilst three of the forensic psychiatrists accepted that Mr Pearce had sustained PTSD as a result of the abuse, none opined that his failure to abide by the income tax laws of the Commonwealth was a result of the Monivae abuse. Indeed, my impression of Mr Pearce when giving evidence over three days was that he possessed sufficient intelligence, unimpeded by any psychological condition, to understand that what he was doing when he failed to pay tax on his income over many, many years was unlawful.
683	I also reject Mr Pearce’s submission that a judge or jury ‘would have extended him some understanding and would not have marked him harshly for having worked for cash’. I think that his decision to live his working life until 2017 in the black economy, or as Ms Zelez put it as ‘a ghost’, accompanied by other attacks on his credit, meant that he was never a candidate for a large award of damages for economic loss, nor for a large settlement of his economic loss claim. This is understood by all who practice in this area and have a sensible appreciation of how a jury may treat a case where the integrity of the claimant is demonstrably undermined — notwithstanding the conduct of the tortfeasor. This would have been appreciated by the lawyers for MSC once an economic loss claim was formulated and advanced at a mediation or settlement conference.
684	Mr Pearce’s hypothetical settlement estimate is fanciful and devoid of any relationship to reality. Waller Legal argued that Mr Thompson’s calculations and hypotheses were couched in speculation and should not be accepted. I have reached the same conclusion as I explained earlier. 
685	In some cases an arithmetical calculation can be made and a Sellars discount applied — if appropriate. Such a discount may be made in a case where a court has confidence in the assessment of the loss, and it is possible to identify the loss with a reasonable degree of precision. 
686	In Malec v Hutton, Brennan and Dawson JJ said ‘[d]amages founded on hypothetical evaluations defy precise calculation’. In Lonergan v The Trustees of the Sisters of Saint Joseph, a couple of forensic accountants attempted to predict the likely career path and earnings of a farmer who had suffered abuse in his youth. Unlike Mr Pearce’s case, there was reasonable material available to the judge as to possible earnings of the plaintiff and his actual earnings. After referring to the principle in Malec v Hutton, Keogh J undertook the exercise mathematically, noting however that:
	Depending on circumstances a plaintiff’s claim may be too speculative for it to be appropriate to use mathematical calculations… as the basis for an assessment of economic loss.
687	For the reasons I have endeavoured to set out, this is just such a case. The estimates of Mr Thompson as to both Mr Pearce’s past earnings and his hypothetical earnings without the abuse are riddled with guesses and speculation to the point of being arguably inadmissible. Ms Zelez’s ‘crystal ball’ may well be a better option. 
688	Given my rejection of Mr Thompson’s arithmetical calculations and Dr Morrison’s opinion, based on them then a ‘realistic and reasoned assessment’ or an ‘informed estimation’ needs to be made. There is nothing unusual in this approach — indeed it is the basis upon which civil juries in common law trials are charged — even when provided with actuarial figures.
689	In reaching an informed estimation, I take into account the following matters which do not need elaboration:
(a)	Mr Pearce’s statements as to the nature of, and the effects that, the abuse had had upon him and his capacity to earn;
(b)	the opinions of Dr Triggs and Ms Whetton supportive of Mr Pearce’s claim that his earning capacity had been significantly affected by the abuse, including the prospect that further evidence may have been obtained — such as that obtained from Drs Tagkalidis and Jager;
(c)	the corroborative evidence from members of his family which supported his claim and would have been adverted to at the mediation or settlement conference; and
(d)	the possible provision of an economic loss report in the form of that provided by Mr Thompson (and this is notwithstanding my concerns as to its basis and whether it would ultimately have found its way into evidence).
690	On the other side of the ledger, are the following:
(a)	MSC’s reliance upon Dr Neill’s report and the prospect that it may obtain supportive evidence for that opinion;
(b)	MSC’s awareness that Mr Pearce’s work history was clouded in mystery and completely undocumented (with a couple of retrospective exceptions). It would have become apparent that in the past he received a substantial number of DHS payments, often worked for cash, had not paid income tax for much of his working life and had never filed tax returns before 2017. This undoubtedly would have affected MSC and its lawyers in predicting a court’s assessment of Mr Pearce’s veracity and any potential award of damages;
(c)	the risk that MSC may change its approach to the claim. I am satisfied that up to the time of settlement it was treating Mr Pearce’s claim as an assessment and that it would have nominated an appropriate defendant if the claim had not settled. However, that would not have prevented it from, at some future time in the litigation, asserting that Mr Pearce needed to prove his case on liability;
(d)	the willingness of MSC to offer a sum that reflected an economic loss component, and the value placed upon it; 
(e)	that Mr Pearce’s lawyers would have advised him, as Ms Zelez and Mr Seccull did, as to the risks of prosecuting his claim before a jury and the cost consequences of his failing to overcome the Calderbank offer; 
(f)	the lack of any objective evidence (e.g. neuropsychological testing) as to his capacity to work in areas other than those in which he has worked in the past; and
(g)	Mr Pearce’s physical ailments unrelated to the abuse which had affected (and would affect) his capacity to work.
691	Doing the best I can, I think that an appropriate allowance for Mr Pearce’s loss of the opportunity to pursue an economic loss claim to the point of a successful mediation or settlement conference is $200,000. Assuming that this loss crystallised around mid-2018, Mr Pearce should also be awarded a sum to compensate him for being shut out of the use of that sum over that period of approximately seven years. Applying the simple interest rate of 4.5% over that period (as Mr Thompson did) and allowing for a loss over seven years, the appropriate allowance for interest is $63,000.
692	Finally, I reject Waller Legal’s submission that Mr Pearce is required to bring into account (or for it to be used as a set off), the amount received by way of settlement of his revived general damages claim —$400,000 inclusive of costs plus retention of the original settlement sum of $140,000. This was said to be necessary because the relevant loss of opportunity was that of the pursuit of a common law claim and he had recovered $540,000 in respect of that claim.
693	I do not accept the submission. It fails to properly identify the nature of the claim brought in this Court. Mr Pearce’s claim is confined to seeking damages for the loss of opportunity to pursue an economic loss claim. As Mr Pearce contended, by pursuing the setting aside application, he endeavoured to mitigate his loss in terms of any form of claim against Waller Legal. He failed to have the economic loss component set aside and this proceeding is the result. The payment of $540,000 went solely to satisfaction of his claim for general damages.
694	General damages and damages for economic loss are separate heads of damage and if Mr Pearce’s case had proceeded to verdict, then there would have been discreet awards. Neither would be offset against the other. The manner of assessment of the losses under the two heads are unrelated and there is no question of double compensation.
695	There is no basis upon which the amount paid by MSC to Mr Pearce in respect of a different head of damage — general damages — can be brought into account in relation to a claim for the loss of opportunity to pursue his economic loss claim. 
Conclusion 
696	There should be judgment for Mr Pearce in the sum of $263,000. 
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