Plaintiff v Defendant

(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).

1. 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.

1. 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.[645]
2. 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.
3. 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.
4. 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.
5. 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.

1. There should be judgment for Mr Pearce in the sum of $263,000.

[1] It was not in issue that Monivae was conducted by the Order of the Missionaries of the Sacred Heart whose abbreviated name is MSC (Missionarii Sacratissimi Cordis in Latin). Priests and brothers of that Order managed and staffed the school in Hamilton and the boarding school at Monivae. MSC is unincorporated in this country. I have used 'MSC' generically to describe the organisation which managed and controlled Monivae at the relevant time. Mr Pearce's lawyers also referred to it as 'the Missionaries'.

[2] Pearce v Missionaries of the Sacred Heart [2022] VSC 697, [111] ('the setting aside application').

[3] The type of Commonwealth benefits received by Mr Pearce under the Social Security Act 1991 (Cth) varied from time to time. In 2015 and 2016, DHS was responsible for payments and also recovery of payments made to a person who receives lump sum compensation. There have been name changes to both the department administering the benefits and the benefits themselves over the period he received payments. I have used the expression 'DHS payments' generically to describe any payments made to Mr Pearce under the Social Security Act (whether described as Centrelink, DSS payments or otherwise) and potentially recoverable by the Commonwealth. I have used the expression 'DHS repayments' and 'Centrelink repayments' generally to describe potential repayments to be made by Mr Pearce.

[4] The detail of Mr Pearce's dealings with Waller Legal and its handling of his claim is set out later in the judgment.

[5] The student is identified in the statement and is anonymised for the purpose of this proceeding.

[6] Truncated Court Book with Additional Documents Tendered on 04.04.2025, 05.02.2025, 06.02.2025 (as at 2:15pm) & 18.02.2025 filed on 19 February 2025, 1162-1171 ('CB').

[7] The statement produced in the CB and tendered as an exhibit was unsigned. However, there was no issue that Mr Pearce had adopted the statement as his account of Brother Frith's alleged abuse.

[9] DPP v Mamo (County Court of Victoria, Judge Leckie, 22 February 2013) at CB 1384-1392.

[10] DPP v Mamo [2015] VCC 1831 at CB 1376-1383.

[16] CB 987-988. The only alteration to the solicitor's document is to the format.

[28] The setting aside application: [2022] VSC 697.

[32] Clifford v Missionaries of the Sacred Heart [2024] VSC 812.

[33] Plaintiff's submissions in support of application to adjourn trial filed 28 January 2025, [4], quoting Dr Waller's witness outline.

[35] [2016] VSC 573, [40], [41] ('Volunteer Fire Brigades Victoria').

[36] Ibid [32]-[33], [36] (emphasis in original) (citations omitted).

[37] [2007] NSWCA 117; (2007) 70 NSWLR 565 ('Ellis').

[38] Ellis v Pell [2006] NSWSC 109.

[39] Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565, 576 [47].

[40] Ibid 577 [49], [51], 604 [200]-[201].

[42] Ultimately enacted as the Wrongs Amendment (Organisational Child Abuse) Act 2017.

[45] Section 4 of the Limitation of Actions Amendment (Child Abuse) Act 2015 inserted Div 5 of Part IIA into the Limitation of Actions Act 1958.

[53] The amendment was effected by s 44 of the Justice Legislation Amendment (Drug Court and Other Matters Act) Act 2020.

[54] [1959] HCA 8; (1959) 101 CLR 298.

[76] CB 2433-2434 (emphasis in original).

[79] In fact, the fee agreement was not sent to Mr Pearce until 5 October 2016.

[86] CB 2425 - the first quote being a reference to the claim in respect of the Brother Mamo abuse.

[217] The reference to 2016 is clearly erroneous.

[364] [2022] NSWCCA 19, [34] (emphasis in original) (citations omitted). See also Galvin v The Queen [2006] NSWCCA 66; (2006) 161 A Crim R 449; Footscray Football Club v Kneale [2024] VSCA 314, [442] (Beach JA and J Forrest AJA, Emerton P agreeing); Norris (a pseudonym) v The Queen [2018] VSCA 137, [45] (Priest, Niall and Ashley JJA); Moore (a pseudonym) v The King [2023] VSCA 236, [167] (Kennedy, Walker and Macaulay JJA); Matthews v SPI (Ruling No 35) [2014] VSC 59, [49]-[56] (J Forrest J).

[413] Amended defence filed 4 February 2025, [33](b)(iii)] ('Amended defence').

[418] (1990) 169 CLR 638 ('Malec v Hutton').

[419] [2022] VSC 697.

[422] DC v State of New South Wales [2016] NSWCA 198; CB 493, 503.

[424] The question to Dr Morrison was phrased by reference to a letter from Ms Zelez to another Waller Legal client.

[431] [1960] HCA 58; (1960) 108 CLR 158.

[432] [1965] HCA 34; (1965) 114 CLR 164.

[438] [2016] HCA 37.

[452] CB 814. Citing Erlich v Liefer [2015] VSC 499; Watts v Rake [1960] HCA 58; Purkess v Crittenden [1965] HCA 34; Shorey v PT Ltd [2003] HCA 27.

[463] [2024] HCA 41.

[466] [1960] HCA 58; (1960) 108 CLR 158, 160.

[467] [1965] HCA 34; (1965) 114 CLR 164.

[489] Respondent's closing submissions filed on 27 February 2025, 6 [9] ('Respondent's closing submissions').

[493] [2023] VSC 679.

[494] [1960] HCA 58; (1960) 108 CLR 158.

[495] [1965] HCA 34; (1965) 114 CLR 164.

[496] [2005] NSWCA 208, [105]-[109] ('Seltsam'). See also Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197, 216 [73] (Osborn and Beach JJA); Footscray Football Club v Kneale [2024] VSCA 314, [660]-[661]; Mark Edwards v TJ (a pseudonym) (2024) VSCA 262, [144]-[149] (Beach, Orr JJA and J Forrest AJA).

[497] Seltsam [2005] NSWCA 208, [105].

[501] Mr Thompson noted that average weekly full-time earnings 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.

[508] Mr Thompson referred to the decision in Kneale v Footscray Football Club Ltd [2023] VSC 679. This decision has subsequently been affirmed by the Court of Appeal in Footscray Football Club Ltd v Kneale [2024] VSCA 314.

[515] For the years ended 30 June 2000, 2001, 2004 to 2015 and 2017 to 2023 and his ATO Prefill Report for the year ended 30 June 2016: see T556; CB 617.

[521] Respondent's closing submissions, 6 [10].

[523] The ACL is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

[524] Section 18 of the ACL applies in this State by operation of ss 3, 6, 7, 8 and 12 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

[525] Plaintiff's closing submissions filed on 27 February 2025, 94 [485] ('Plaintiff's closing submissions'). See also T1105.

[526] Defendant's closing submissions, 24 [97]; T58.

[528] [2015] FCAFC 114, [179] (Gilmour, McKerracher and Gleeson JJ) (emphasis added).

[529] [2019] VSCA 167, [194]-[195] (citations in original).

[530] ACCC v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, 651 [39].

[531] Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31.

[532] Addenbrooke Pty Ltd v Duncan (No 2) [2017] FCAFC 76 [482] (Gilmour and White JJ).

[533] Plaintiff's closing submissions, 96 [492].

[534] Plaintiff's closing submissions, 99 [505].

[535] Citing ACCC v Valve Corporation (No 3) [2016] FCA 196, [219], cited with approval in ACCC v Mazda Australia Pty Limited [2023] FCAFC 45, [54].

[536] Citing Heydon v NRMA Ltd & Ors (2000) 51 NSWLR 1, 148 [431].

[537] Citing see Addenbrooke Pty Ltd v Duncan (No 2) Pty Ltd [2017] FCAFC 76.

[538] Defendant's closing submissions, 38-9 [154]-[158] (citation in original).

[540] [2009] FCA 682.

[545] Hill v Van Erp (1997) 188 CLR 159, 167 ('Hill'); Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440, 450 [20], 452 [30] (French CJ, Kiefel and Keane JJ), 457 [57] (Gageler J) ('Badenach').

[546] Astley v AusTrust Ltd (1999) 197 CLR 1, 22-23.

[549] Wrongs Act 1958, pt X div 5.

[550] Hill (1997) 188 CLR 159, 167 (Brennan CJ); Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440, 450 [20] (French CJ, Kiefel and Keane JJ) ('Badenach'). See also Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 483 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).

[551] [2016] HCA 18; (2016) 257 CLR 440, 457 [57].

[552] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 456 (Gummow J) ('Rosenberg').

[553] Heydon v NRMA Ltd (2000) 51 NSWLR 1.

[554] [2019] VSC 342, [74]. See also Yates Property Corp Pty Ltd (in liq) v Boland [1998] FCA 8; [1998] 85 FCR 84, 108 (Drummond, Sundberg and Finkelstein JJ).

[555] Badenach [2016] HCA 18; (2016) 257 CLR 440, 462 [79] (Gordon J); Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 370-371 [19]-[21] (French CJ and Gummow J); Rosenberg [2001] HCA 18; (2001) 205 CLR 434, 441-442 [16] (Gleeson CJ); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 443 [61] (Gummow J), 461 [126] (Hayne J); Robinson v EACH Ltd [2024] VSCA 313, [121]-[122], [150] (Macaulay JA, Gorton and J Forrest AJJA).

[556] Plaintiff's closing submissions filed, 65-66 [354a].

[557] Civil Procedure Act 2010, s 7(2)(c).

[558] Ibid ss 10, 11.

[559] Ibid s 19.

[560] Ibid s 22.

[561] Ibid s 24.

[562] Plaintiff's closing submissions, 59 [318].

[563] Ibid 52 [272]-[276], 62-63, [336]-[338].

[564] Ibid 31 [162]. The transcript references to Dr Waller's evidence do not necessarily support the breadth of this submission.

[565] Plaintiff's closing submissions, 25-26 [127]-[128].

[566] Defendant's closing submissions, 33 [125].

[568] See also Ms Zelez's email to Mr Pearce of 7 July 2016; T725.

[569] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308 (Kitto J).

[571] Defendant's closing submissions, 31-34 [122]-[130].

[574] Plaintiff's closing submissions, 2 [14], 30 [157].

[578] [1963] VicRp 80; [1963] VR 594.

[582] Plaintiff's closing submissions, 2 [14].

[590] Ibid 57 [306], 107 [532(vi)-(vii)].

[592] Plaintiff's closing submissions, 65-66 [354e].

[595] Badenach [2016] HCA 18; (2016) 257 CLR 440, 453 [34] (French CJ, Kiefel and Keane JJ).

[596] Evidence Act 2008, s 140(1).

[597] (1994) 179 CLR 332, 355 (emphasis in original) ('Sellars'). See also Talacko v Talacko [2021] HCA 15; (2021) 272 CLR 478, 495-496 [41]-[43] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) ('Talacko').

[598] [1971] 1 Q.B. 113.

[600] [2016] HCA 18; (2016) 257 CLR 440.

[601] Badenach [2016] HCA 18; (2016) 257 CLR 440, 454 [38]-[40] (French CJ, Kiefel and Keane JJ) (emphasis added),

[602] [2001] HCA 18; (2001) 205 CLR 434, 443-444 [25].

[603] [2020] FCAFC 62; (2020) 278 FCR 1, 132-133 [445] (Bromwich, O'Callaghan and Wheelahan JJ) ('Jadwan'). See also Transport Industries Insurance Co Ltd v Longmuir (1997) 1 VR 125, 141 (Tadgell JA).

[604] Plaintiff's closing submissions, 66 [355].

[605] Defendant's closing submissions, 34 [132]-[133].

[607] Plaintiff's closing submissions, Appendix A, [4(ii)].

[609] Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] UKPC 1; [1961] AC 388.

[610] See Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307, [131]-[151] (Meagher JA, Bathurst CJ and Beazley P agreeing). Rosenberg [2001] HCA 18; (2001) 205 CLR 434, 441-442 [16] (Gleeson CJ) but cf 443-444 [25] (McHugh J).

[620] (1994) 179 CLR 332.

[621] (1990) 169 CLR 638.

[622] [1991] HCA 54; (1991) 174 CLR 64.

[623] (1994) 179 CLR 332, 348.

[627] [2021] HCA 15; (2021) 272 CLR 478, 496 [43] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) (citations omitted) (emphasis added).

[628] [2005] QCA 316.

[632] Plaintiff's closing submissions, 76 [398]-[400].

[634] Plaintiff's closing submissions, 76 [408]-[409].

[639] See for example Eastwood Retirement Pty Ltd (as Trustee for the Eastwood Retirement Unit Trust) v Joseph Finance and Investment Pty Ltd (as Trustee for the Lifestyle Investment Unit Trust) [2025] VSCA 30, [80]-[90] (Beach, Orr JJA and Matthews AJA).

[640] (1990) 169 CLR 638, 640.

[641] [2021] VSC 651.

[643] Talacko [2021] HCA 15; (2021) 272 CLR 478, 496 [43] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).

[644] Sellars (1994) 179 CLR 332, 368 (Brennan J).

[645] In the event that there is any application by Mr Pearce for interest pursuant to the Supreme Court Act 1986, then the portion of this assessment attributable to the post-issue period would need to be taken into account.