Clifford (a pseudonym) v The Corporation of the Society of the Missionaries of the Sacred Heart

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0029

ELLIOT CLIFFORD (A PSEUDONYM)	Applicant
v
THE CORPORATION OF THE SOCIETY OF THE MISSIONARIES OF THE SACRED HEART	Respondent

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JUDGES:	LYONS, KAYE and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2025
DATE OF JUDGMENT:	11 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 169
JUDGMENT APPEALED FROM:	Clifford (a pseudonym) v The Missionaries of the Sacred Heart [2024] VSC 812 (Tsalamandris J)

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PRACTICE AND PROCEDURE – Application to amend notice of appeal to include additional ground of appeal – Application to rely on fresh evidence in support of additional ground in notice of appeal – Documents subject of fresh evidence applications not discovered by respondent before judgment delivered in lower court – Where documents include allegations of sexual abuse committed by key witness called by respondent – Where judge found witness to be credible and reliable – Failure to discover documents conceded by respondent – Sufficiently arguable that documents could have affected judge’s assessment of witness at trial – Sufficiently arguable documents could have enabled applicant’s counsel to pursue line of questioning of witness not available at trial – Applicant granted leave to amend notice of appeal to include additional ground.

Civil Procedure Act 2010, ss 26 and 27; Supreme Court (General Civil Procedure) Rules 2015, r 64, referred to – Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134; Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSCA 383, referred to.

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Counsel
Applicant:		Ms KE Foley SC with Mr J McComish
Respondent:		Ms RN Annesley KC with Mr JS Forrest
Solicitors
Applicant:	Rightside Legal
Respondent:	Colin Biggers & Paisley

LYONS JA
KAYE JA
KENNY JA:

In 2022, the applicant commenced a proceeding in the Trial Division, in which he claimed damages against the respondent for injuries he alleged that he suffered while he was a boarding student at Monivae College (‘the College’) in Hamilton between 1975 and 1977.
On 20 December 2024, following a trial of the claim, Tsalamandris J dismissed the proceeding with costs. The applicant has filed a notice of appeal, relying on nine grounds. He now applies for leave to amend the notice to add an additional tenth ground, and, in support of that ground, to rely on further evidence, which was not adduced at the trial.

The proceeding

In the proceeding, the applicant alleged that, during that time at the College, he was subjected to three instances of abuse, namely:
(a)Bullying and sexual abuse committed against him by five students over a period of time in 1975 (‘the student abuse’).
(b)Abuse committed against him by Brother John Frith, a Brother of the respondent’s Order, in 1975 or 1976 (‘the Frith abuse’).
(c)Abuse committed against him by Brother Edward Mamo in the College laundry in 1976 or 1977 (‘the Mamo abuse’).
The applicant’s claim, as pleaded, was based on negligence and breach of a non-delegable duty by the respondent.
The trial of the claim took place between 27 August and 12 September 2024. Final submissions were made to the judge on 15 November, and the parties also provided written submissions, the last of which was served by the respondent on 26 November 2024.
In a reserved decision[1] dated 20 December 2024, the judge reached the following conclusions:
(1)The judge was satisfied that the student abuse occurred in the manner described by the applicant in his evidence.[2] However, her Honour was not satisfied that the respondent failed to take reasonable precautions in response to the foreseeable risk of the applicant being abused by other boarders at the College, and her Honour further was not satisfied that any breach, by the respondent of its duty of care to the applicant in respect of that abuse, was a cause of the student abuse.[3]
(2)The judge was not satisfied, on the balance of probabilities, that the Frith abuse occurred.[4]
(3)The judge was satisfied that the Mamo abuse occurred.[5] The judge was not satisfied that the respondent had actual knowledge that Brothers at the College, including Mamo, had previously sexually abused students.[6] Further, her Honour was not satisfied that the respondent ought to have foreseen a risk that Mamo would sexually abuse the applicant.[7] Accordingly, the judge concluded that the applicant had failed to establish, on the balance of probabilities, that the risk of sexual abuse by a Brother of the College was foreseeable by the respondent before the occurrence of the Mamo abuse.[8]
[1]Clifford (a pseudonym) v The Missionaries of the Sacred Heart [2024] VSC 812 (‘Reasons’).
[2]Ibid [129].
[3]Ibid [262]–[263].
[4]Ibid [179]–[180].
[5]Ibid [210].
[6]Ibid [293].
[7]Ibid [294].
[8]Ibid [304].

Application for leave to appeal

By notice of application for leave to appeal, the applicant challenges each of the principal conclusions, made by her Honour. In summary, the proposed grounds of appeal contend that the judge erred:
(1)in failing to find that the respondent was negligent in respect of the student abuse;
(2)in failing to conclude that the respondent’s negligence was a cause of the student abuse;
(3)in failing to find that the respondent was negligent in respect of the Mamo abuse;
(4)in failing to find that the respondent’s negligence was a cause of the applicant’s injury and loss with respect to the Mamo abuse;
(5)in failing to find that the Frith abuse occurred;
(6)in failing to find that the respondent was negligent in respect of the Frith abuse;
(7)in failing to find that the respondent’s negligence was a cause of the applicant’s loss and injury with respect to the Frith abuse;
(8)in failing to find that, by reason of s 61 of the Wrongs Act 1958 (Vic), the respondent was liable: for the abuse of Mamo; for the abuse of Frith; and for the negligence of the Rector, Father Fyfe, and the staff of the College in respect of the student abuse;
(9)in finding that the respondent was not liable for the breach of its common law non-delegable duty with respect to: the student abuse; the Mamo abuse; and the Frith abuse.
Based on the fresh evidence that he seeks to adduce, the applicant applies to add a further ground, namely:
10.The trial miscarried by reason of the respondent’s misconduct in failing to disclose (pursuant to s 26 of the Civil Procedure Act 2010 (Vic)) or discover documents in its possession, custody or power, relating to:
(a)concerns, allegations and substantiated allegations of sexual misconduct which occurred prior to 1975, made against a key witness called by the respondent, Fr Fyfe, the Rector of Monivae College at the time of the applicant’s abuse in 1975; and
(b)concerns, allegations and responses to allegations of sexual misconduct made against a key witness called by the respondent, Br Frith, a staff member of Monivae College at the time of the applicant’s abuse in 1975.
Those documents were unavailable at trial by reason of a significant failure by the respondent to comply with its disclosure obligations under s 26 of the Civil Procedure Act 2010 (Vic) and/or its discovery obligations, and were material because they were directly relevant to:
(a)the actual knowledge of the respondent in relation to the risk of sexual or physical abuse of the applicant;
(b)the reasonable foreseeability of the risk of sexual or physical abuse of the applicant;
(c)the occurrence of the Frith abuse;
(d)the negligence of the respondent in relation to each of:
(i)the student abuse;
(ii)the Mamo abuse; and
(iii)the Frith abuse;
(e)the credit of Br Frith; and
(f)the credit of Fr Fyfe,
such that:
(g)the documents are further evidence which, either individually or in combination, raises a real likelihood that the judge would have reached a different outcome had those documents been disclosed or discovered at first instance; and/or
(h)the documents are further evidence which, either individually or in combination, raises a real likelihood that the applicant would have conducted his case differently had those documents been disclosed or discovered at first instance; and
(i)the interests of justice require a new trial.

The fresh evidence and new ground of appeal application – Ground 10(a)

The application to amend the notice of appeal to add ground 10(a), and to adduce further evidence in support of that proposed ground, is made on the basis that, in the trial, the respondent had relied substantially on the evidence of the Rector of the College, Father Fyfe, and had submitted to the trial judge that he was a witness of credit, in circumstances in which the respondent knew, but had not disclosed to the applicant, that Father Fyfe had been accused of sexual misconduct with a student while he was Rector of the College.
In particular, it is submitted that in the course of the trial of the present proceeding, and before the trial judge delivered judgment, the respondent became aware that allegations of abuse made against Father Fyfe, by a former student of the College, had been substantiated by investigation, and that the respondent had failed to disclose that fact, or the allegations, to the applicant, or bring them to the attention of the trial judge.
The application is based on an affidavit by the applicant’s solicitor, Mr Michael Magazanik. In the affidavit, Mr Magazanik has deposed that, after the conclusion of the trial and judgment, he became aware, for the first time, of the investigation relating to Father Fyfe, and the findings that were made in the course of that investigation. Mr Magazanik deposed that, on 13 March 2025, he received an email from AM,[9] which disclosed: that while he was a student at Monivae College during the late 1960s, he had experienced sexual misconduct; that the Missionaries of Sacred Heart (‘MSC’), which ran the school, had substantiated his allegations; and that he wanted to obtain legal advice about a possible claim. AM emailed to Mr Magazanik a number of documents concerning that claim.
[9]A pseudonym.
Subsequently, Mr Magazanik spoke with AM, and also with his brother, Father PM,[10] who, in the 1990s, had reported to the MSC concerns that he had about Father Fyfe’s conduct.
[10]A pseudonym.
Father PM informed Mr Magazanik that, in about 1996, he spoke with the Provincial of MSC about Father Fyfe’s inappropriate relationship with his brother, AM, which had caused AM great distress. Father PM further informed Mr Magazanik that on 13 December 2023, he had been contacted by an investigator with a Sydney law firm, Element Becroft. The investigator, Ms Kath Element, had emailed Father PM and informed him that she had been engaged by MSC to undertake an investigation into matters of concern relating to the conduct of the College.
Subsequently, Ms Element travelled to Melbourne. On 5 February 2024, she conducted an extensive interview with AM. As a result of her investigation, Ms Element, in her report dated 7 November 2024, concluded that all but one of AM’s allegations against Father Fyfe had been substantiated.
The further materials, relating to the allegations concerning Father Fyfe, and which are the basis of the first application to adduce further evidence, consist, principally, of the transcript of the interview, which Ms Element undertook with AM. The interview was lengthy. For the purposes of the present application, it is not necessary to set it out in detail.
In essence, AM stated that, when he was a student at Monivae College in Years 10 to 12 in 1967 to 1970 (repeating Year 11), he came very much under the influence of Father Fyfe, who developed a close and at least in some respects unusual relationship with him. AM said that, during that time, he felt ‘embedded’ in Father Fyfe’s life, and that Father Fyfe had ‘total control’ over his life.
AM said that Father Fyfe would create opportunities when they were alone by themselves, by directing AM to attend his office, or by taking him on long motor vehicle drives to Warrnambool, including to the beach. During those occasions, while they were speaking, Father Fyfe would grab hold of his hands and would not let go of them. Further, AM described how Father Fyfe would engage in wrestles with him about once a week, with ‘body to body contact’. Father Fyfe would create some excuse to have a wrestle, and would try to get AM into a headlock. AM said that he felt that Father Fyfe wished to wrestle him because ‘he wanted physical contact’. The wrestles would last for some five minutes, and it felt quite prolonged.
When AM was in Year 12, he was allocated a small bedroom cubicle on the top floor of the boarding house building. Father Fyfe would visit him there. AM said that, on at least one occasion, Father Fyfe opened his legs and pressed his groin on AM’s leg and shin and foot. AM said that he felt totally trapped. On those occasions, Father Fyfe would hold his hand and say, ‘Tell me how much you love me’. AM also explained how, on other occasions when Father Fyfe took him to the beach, they would rub sunscreen on each other’s backs.
AM also stated that Father Fyfe gave him expensive gifts, including an expensive watch. On one occasion, Father Fyfe brought back from overseas a leather jacket for him. AM also described how Father Fyfe would borrow his clothes while he was at school, and wear them around the school. AM felt that Father Fyfe was in total control of their relationship. AM felt powerless to do anything, and he felt ‘trapped’.
On the present application, it was submitted on behalf of the applicant that the failure of the respondent to disclose any information concerning the allegations against Father Fyfe, is significant, in view of the fact that he was called as a witness in the trial to give evidence for the respondent, and that evidence was adduced as to Father Fyfe’s antecedents and good character. Based on that evidence, the judge regarded Father Fyfe as an impressive witness. The applicant submitted that, if the respondent had disclosed to the applicant the allegations made about Father Fyfe, it is unlikely that Father Fyfe would have been called as a witness in the trial. If he was called as a witness, he would have been exposed to cross-examination concerning the allegations made against him. Further, the applicant would have been in a position to adduce evidence that the person, in charge of the school, who had the responsibility of protecting students (including the applicant), was himself a child abuser.
In response, it was submitted on behalf of the respondent that, taken at its highest, the transcript of the interview with AM revealed inappropriate conduct, and possibly grooming by Father Fyfe, but it does not contain any allegation of sexual or other abuse by him. Further, it was submitted, AM did not describe any complaint made by him to the respondent.
It was further submitted that it is unlikely that the information, contained in the documents, would have altered the judge’s finding in respect of the issue concerning the knowledge by the respondent of any risk of physical or sexual assault by staff of the College. If Father Fyfe had been cross-examined at trial as to any previous complaint of abuse against him, there is no reason for the Court to find that Father Fyfe would not have answered honestly. In that respect, counsel noted that Father Fyfe has now had the opportunity to respond to the allegations made by AM in writing, and it is probable that Father Fyfe, if questioned about the allegations, would have denied them.

The fresh evidence and new ground of appeal application – Ground 10(b)

The application, to adduce further evidence in support of proposed ground 10(b), is based on three documents concerning Brother Frith (‘the Frith documents’), which first came to the attention of the applicant’s lawyers in May 2025, namely:
(a)a note dated 12 December 2008 of a meeting on 11 December 2008 between Brother Frith and the respondent’s Provincial;
(b)a Provincial Memo dated 30 December 2008;
(c)an email dated 23 January 2014 from a former lay teaching colleague of Brother Frith at Chevalier College in Bowral in about 1990 or 1991.
Documents (a) and (b) were apparently internal notes or memoranda authored by Father Tim Brennan while he was Provincial Superior of the Missionaries of the Sacred Heart. Document (c) is an email chain containing concerns about the conduct of Brother Frith with students at Chevalier College, those concerns being expressed by a former lay teacher at the College.
In his affidavit in support of the application to adduce that evidence, the applicant’s solicitor affirms that the information contained in the documents includes the following:
(a)Brother Frith believed that one school family accused him of sexual abuse to avoid paying school fees, and that Brother Frith believed that the Principal of the College did not pursue the fees in order to prevent the complaint going any further;
(b)at Monivae College, Brother Frith tried to wash a child in the bath, who screamed at him to ‘fuck off’ and later complained that he had been masturbated in the bath;
(c)as an untrained nurse at the infirmary, Brother Frith had had to deal with a child ‘who claimed his erections would not go down’, with another child who ‘had inserted a piece of wire in his penis’ and with other such ‘embarrassing matters’;
(d)Brother Frith had befriended a boy, who he had constantly had in his room and taken on outings. The Principal had objected to Brother Frith’s behaviour with the boy, and contacted the Provincial. As a result, Brother Frith was ordered to stop having the boy in his room;
(e)the Provincial wanted Brother Frith to be assessed ‘to get a better handle on the arrested personal development’;
(f)a lay teacher at Chevalier College observed that students frequently used Brother Frith’s bathroom and played in his office, which concerned the teacher;
(g)Brother Frith had told the same teacher that, on one night, he had watched a boy masturbating (in circumstances in which the boy appears to have been unaware that Brother Frith was watching him).
The Frith documents were not discovered by the respondent in the course of the applicant’s proceeding below.
In an affidavit deposed on 6 September 2023, the respondent discovered documents which were included in a bundle entitled ‘Brother Frith employment history and personnel file’. The Frith documents were not included in that bundle.
On 5 December 2023, the respondent filed a further affidavit of documents, that referred to a bundle of documents entitled ‘Documents relating to complaints, claim documents and statements from persons in respect of alleged abuses by Brother John Frith’. The Frith documents were not included in that bundle.
On 26 August 2024, the day before the trial in the present proceeding, the applicant issued a summons seeking further discovery of documents. On 29 August 2024, the respondent served on the applicant a further supplementary affidavit of documents, which did not include the Frith documents.
On 6 September 2024, during the trial of the proceeding, the applicant’s solicitor sent an email to the respondent’s solicitor, noting that the discovery relating to Brother Frith’s employment and personnel file was small, and requesting that the respondent provide a copy of all documents held by the respondent ‘relating to Brother Frith as a matter of urgency’. In response, the respondent’s solicitor stated that the number of documents discovered as the Frith personnel file was correct, but also, ‘for the sake of completeness’, referring to other documents relating to Brother Frith, particularly in the period prior to 1980. The email contained 35 pages of documents, which did not include the Frith documents.

The Frith documents came to light in the context of a different proceeding, commenced by one Justin Balmer (‘Balmer’) in the County Court. In April 2025, Mr Balmer, who had, until then, been represented by a different legal firm, requested that the applicant’s solicitor, Rightside Legal, take over the claim. In May 2025, while reviewing the discovery made by the respondent in Balmer’s matter, the solicitor for the applicant came across the Frith documents. As a consequence, she entered into correspondence with the respondent’s solicitors, concerning the discovery of those documents, and the release of Rightside Legal from the Harman undertaking[11] in respect of the Frith documents. Subsequently, on 27 May 2025, orders were made by a judge of the County Court releasing the applicant and his legal representatives from the obligation, that arises under s 27(1) of the Civil Procedure Act 2010, and the implied undertaking arising from Harman.
[11]Harman v Secretary of State for the Home Department [1983] 1 AC 280 (‘Harman’).
In support of the application to rely on the Frith documents in the application for leave to appeal, counsel for the applicant noted that the respondent had not only failed to discover the documents, but, further, when concerns were raised concerning the completeness of Brother Frith’s personnel file, the respondent’s solicitors had assured the applicant’s solicitors that that file was correct and complete.
Counsel further submitted that the evidence, contained in the Frith documents, is of particular relevance. The judge found that the applicant was a credible witness, and that the two other witnesses, who gave evidence they had been abused by Brother Frith, gave credible accounts. Her Honour also considered Brother Frith’s denial of the abuse to be credible. For that reason, her Honour was not persuaded, on the balance of probabilities, of the claims made concerning the Frith abuse.
Counsel submitted that, in that context, the Frith documents were relevant for at least six reasons. First, the documents were business records, which would have significant weight in assessing the credibility and reliability of the witness evidence. Secondly, at least the first two documents were relevant to the assessment of the probability that the Frith abuse occurred. Thirdly, the first two documents concerned allegations of historical sexual abuse, which Brother Frith was alleged to have perpetrated at Monivae College at or around the time of the alleged abuse complained of by the applicant. Fourthly, if the documents had been produced in discovery, the applicant could have taken steps to identify the complainants discussed by Brother Frith and Father Brennan, and, as a result, the applicant might have had the opportunity to call those complainants in evidence. Fifthly, the Frith documents could have affected the manner in which the tendency evidence was admitted in the proceeding. Finally, the respondent did not call Provincial Superior Tim Brennan at the trial. In light of the discovered documents, it was submitted that the failure of the respondent to call Father Brennan would have attracted a Jones v Dunkel[12] inference.
[12](1959) 101 CLR 298; [1959] HCA 8.

Respondent’s submissions

The respondent accepted that the Fyfe and the Frith material, that is the subject of the applicant’s application, was not available to the applicant at the trial, that the unavailability of the material was not due to any lack of reasonable diligence on behalf of the applicant, and that the material was discoverable in the proceeding, but it was not discovered by the respondent.
The respondent submitted that, in view of the applicable principles, the question whether the Fyfe or the Frith material should be permitted to be received on appeal in support of the proposed amended grounds of appeal, depends on whether there is at least a real possibility that the production and use of the Fyfe material or the Frith material would have led to a different result at trial.
In respect of that question, it was submitted on behalf of the respondent that while the Frith material should have been discovered by it at trial, there is no real possibility that the disclosure of that material would have led to an opposite result. Counsel submitted that if the Frith material had been disclosed to the applicant, it would not have been admitted into evidence. On the sixth day of the trial, the primary judge ruled on the admissibility of evidence, identified in the applicant’s amended hearsay and tendency notices. Three of those pieces of evidence were documents of a similar character to the Frith material. In her ruling, the primary judge declined to admit the documents, primarily because the complainants in the documents were not identified. Similarly, the documents, that constitute the Frith material, also do not identify the complainants referred to in that material. Accordingly, if those documents had been disclosed at trial, the judge would not have admitted them into evidence.
The respondent accepted that if the Frith material was not admitted in evidence, it might still have formed the basis of cross-examination of Brother Frith. However, it was submitted, that would not have made any difference. Brother Frith was exhaustively cross-examined on the history of complaints against him relating to sexual abuse, as well as the substance of several of those complaints. He was also cross-examined on criminal charges that had been brought against him, and the compensation payments made by the respondent to the complainants. In his evidence at trial, Brother Frith accepted that there had been many complaints against him, but he consistently denied the conduct that was the subject of the complaints. The primary judge, having had the benefit of observing Brother Frith under cross-examination, concluded that his evidence was credible.
The respondent further submitted that if the judge could have been persuaded that the Frith abuse occurred, her Honour would nevertheless not have found the respondent liable for that abuse. The judge’s conclusion, in the context of her reasoning relating to the Mamo abuse, meant that the applicant had failed to establish that the risk of sexual abuse, by a Brother at the school, was reasonably foreseeable by the respondent.
In respect of the Fyfe material, the respondent submitted that there was not a reasonable possibility that the material, if available to the applicant, would have produced an opposite result. In particular, the applicant’s claim did not fail because Father Fyfe gave evidence, which was regarded as credible. On the contrary, it was submitted, the applicant’s case at trial, to a considerable extent, depended on acceptance of parts of Father Fyfe’s evidence. In particular, it was noted that the applicant relied on Father Fyfe’s evidence: that he was aware of the risk of bullying amongst students, as well as incidents of sexual misbehaviour between students; that he was not aware of students being given information about sexual abuse; that there was no mandatory obligation for staff to report suspicions of child sexual abuse, nor was guidance given to staff on systems of managing child sexual abuse complaints; that staff were expected to use their own ingenuity as to how to manage such abuse; and that a vigilant house master should have prevented sexual assaults between students. Counsel noted that, in his closing written submissions, the applicant sought to characterise Father Fyfe’s evidence as ‘compelling’.
Counsel noted that, consistently with that approach, the judge regarded Father Fyfe’s evidence as supporting several findings in favour of the applicant, including a finding that there was a foreseeable and not insignificant risk that the applicant would be sexually abused by one or more boarding students, and a finding that the Mamo abuse occurred. Accordingly, it was submitted that, in view of the fact that the applicant relied extensively on Father Fyfe’s evidence at trial, his present submission, which attributes his failure at trial to Father Fyfe giving credible evidence, has an air of unreality. In particular, the student abuse claim failed, in spite of the applicant’s reliance on Father Fyfe’s evidence, but because the applicant failed to adduce evidence as to the reasonable precautions that were required to prevent that abuse.
The respondent accepted that the applicant failed in respect of the Mamo abuse on the issue of reasonable foreseeability, on which issue Father Fyfe’s evidence was material. However, it was submitted, the applicant would also have failed on the issue of breach of duty of care, in view of his failure to adduce evidence as to the reasonable precautions that were required to prevent that abuse.

Fresh evidence — legal principles

The question is whether the applicant should be granted leave to add the further ground to the proposed grounds of appeal, that are based on the fresh evidence, to which we have referred.
The principles, that apply to reliance on fresh evidence as the basis of a ground of appeal, are well-established. In essence, there are two indispensable requirements, which must be satisfied. First, the party seeking to rely on the evidence must demonstrate that the evidence could not have been discovered at trial by the exercise of all reasonable diligence in the circumstances. Secondly, it must be reasonably clear that, if the evidence had been adduced at trial, it would have produced an opposite result.[13]
[13]Orr v Holmes (1948) 76 CLR 632, 640 (Dixon J); McDonald v McDonald (1965) 113 CLR 529, 532–3 (Barwick CJ); Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134, 141–2 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1991] HCA 61 (‘Quade’); Pateras v State of Victoria [2017] VSCA 31, [64]–[65] (Santamaria and Beach JJA); Abedini v Commissioner of Australian Federal Police [2024] VSCA 230, [133] (McLeish, Lyons and Kaye JJA).
However, in Quade the Court held that the position was ‘different’ where the evidence was not available due to the misconduct of the successful party in failing to comply with a discovery order: in such a case, the requirement to show that a different result was ‘almost certain’ or ‘reasonably clear’ did not serve the interests of justice in an individual case or more generally.[14] The Court considered that it was ‘neither practicable nor desirable’ to set out a mechanical rule to be applied in determining whether a new trial should be ordered in such circumstances.[15]
[14]Quade (1991) 178 CLR 134, 142 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
[15]Ibid.
Rather, such cases depend upon the Court’s assessment of what will best serve the interests of justice, having regard to a variety of possibly competing factors including (in addition to the administration of justice) the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party, and the extent that the result would have been different if the order had been complied with and the non-disclosed material had been made available.[16] As to the last factor, the Court stated that ‘the question of whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that [an opposite result would have been produced]’.[17]
[16]Ibid 142–3.
[17]Ibid 143.
In the present application, the question is not whether the new ground of appeal, sought to be relied on, should succeed. Rather, the issue is whether that ground is sufficiently arguable that the applicant should be entitled to rely on a ground of appeal for the purpose of contending that there is a reasonable prospect that, if that material had been discovered by the respondent to the applicant before or in the course of the trial, a different result might have been achieved.[18]
[18]Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSCA 383, [13] (Beach JA, with whom Osborn JA agreed).

Ground 10 (a) — analysis and conclusion

In considering that question in relation to the proposed ground 10(a), it is significant that Father Fyfe was relied on by the respondent as an important witness in its defence of the claim by the applicant. His evidence played a significant role in the determination by the judge that the respondent was not liable for the student abuse or the Mamo abuse suffered by the applicant.
In the introductory part of her reasons, the judge said the following in relation to Father Fyfe:
... Father Fyfe had a very good memory and I considered him to be an impressive witness. Father Fyfe said that as Rector, his aim was to have a pleasant environment for students at the College, and to provide them with a “home away from home”.[19]
[19]Reasons, [33].
The claim by the applicant, that the respondent was liable for the student abuse, was based on the proposition that there was a culture of severe violence at the College, of which those in charge of the College knew, or ought to have known.[20]
[20]Ibid [228], [235].
The judge accepted the evidence of Father Fyfe that he was not aware of any concern about the behaviour of the five students who perpetrated the student abuse, and he was not aware of the type of behaviour by them, which was alleged by the applicant or by another witness, Mr Neeson. Her Honour considered Father Fyfe to be a ‘credible and reliable witness’, whose evidence she accepted.[21] The judge was thus satisfied that any reluctance amongst students to report misbehaviour by other students was not due to a culture of violence, but, rather, a culture of ‘no dobbing’ at the College.[22]
[21]Ibid [239].
[22]Ibid [243].
In respect of the Mamo abuse, the judge noted that the respondent relied on Father Fyfe’s evidence that only the Rector, teachers within their classes, and discipline masters were authorised to punish students.[23] The judge held that the applicant had failed to prove, on the balance of probabilities, that the respondent had actual knowledge of sexual abuse by other Brothers at the College before the Mamo abuse.[24] Specifically, the judge accepted the evidence of Father Fyfe that, while he was Rector, he was not informed of a previous incident in which another Brother had abused a student.[25]
[23]Ibid [284].
[24]Ibid [288].
[25]Ibid [289].
The judge further concluded that the plaintiff had not established, on the balance of probabilities, that the respondent ought to have known that there was a not insignificant risk that a Brother (such as Brother Mamo) would sexually abuse the applicant.[26] In reaching that conclusion, the judge accepted Father Fyfe’s evidence that if he had known that a Brother had previously abused a student at the College, he would have taken steps to protect against further abuse of children.[27]
[26]Ibid [297].
[27]Ibid [301]. See also [318].
In that context, for the purposes of the present application, we have concluded that it is sufficiently arguable that there is a real possibility that the fresh material, relating to Father Fyfe, would have made a material difference to the outcome of the claims by the applicant if that material had been available at trial. This is because we have concluded that it is reasonably arguable that the evidence might have affected the judge’s assessment of the credibility and reliability of the evidence of Father Fyfe, and of his knowledge, perception and appreciation of the conduct of the students involved in the student abuse, and of the conduct of Brothers Frith and Mamo, and their relationships with students. Accordingly, proposed ground 10(a) is, in our view, sufficiently arguable for the purpose of the amendment to the proposed grounds of appeal, so that the applicant should be entitled, in propounding that ground, to seek to put the fresh material, now relied on, before the court. Ultimately, it would be for the court, on hearing the application for leave to appeal, to determine whether that fresh material should be admitted, and if so, for what purpose.

Ground 10(b) — analysis and conclusion

Senior counsel for the respondent was correct to point out that at the trial Brother Frith was cross-examined concerning a number of complaints of sexual abuse and other inappropriate conduct by him. Nevertheless, as senior counsel for the applicant has noted, the three documents, that constitute the fresh evidence concerning Brother Frith, contain relevant specific details, including an account of the response by Brother Frith to some particular complaints made about him.
Nevertheless, we have concluded that it is sufficiently arguable that there is a real possibility that the production of the Frith documents would have led to a different result at trial. Quite apart from questions of the admissibility of the Frith documents as business records, it is sufficiently arguable that if the Frith documents had been properly discovered by the respondent, the applicant might have been able to identify the particular students who are referred to in the documents, so as to be able to call them as witnesses in support of his case. We note from the Ward affidavit affirmed 3 July 2025 that the solicitors for the applicant have now identified the author of the third Frith document dated 23 January 2014. Further, it is also sufficiently arguable that, the degree of specificity contained in the documents, if available at trial, might have enabled counsel in cross-examination to have pursued and pressed questions, asked of Brother Frith in cross-examination concerning allegations of other instances of sexual abuse and misconduct by him, which was not possible at the trial.
In those circumstances, for the purposes of the present application, it could not be concluded that if the Frith documents had been discovered by the respondent to the applicants before or in the course of the trial, a different result might not have been achieved. That conclusion is sufficient for the purposes of granting the applicant leave to amend the proposed grounds of appeal to include ground 10(b). As is the case with ground 10(a), we would reserve consideration of the application to rely on the further evidence, comprising the Frith documents, to the court which will hear and determine the application for leave to appeal.

Summary of conclusions

For the foregoing reasons, we give leave to the applicant to add a further ground to his application for leave to appeal to include ground 10(a) and (b) in accordance with the amended application for leave to appeal dated 10 June 2025. We adjourn, to the court which determines the application for leave to appeal, the application by the applicant to rely on the further fresh evidence in support of that ground.

[2025] VSCA 169

11 July 2025