In the recent matter of Clifford (a pseudonym) v The Corporation of the Society of the Missionaries of the Sacred Heart [2025] VSCA 169, the plaintiff, Clifford (a pseudonym), commenced court proceedings seeking damages against the defendant, The Corporation of the Society of the Missionaries of the Sacred Heart, for sexual assaults alleged to have been suffered while he was a boarding student at Monivae College (‘the College’) in Hamilton between 1975 and 1977. The defendant was the Catholic order which operated the College, which comprised a school and boarding house. 

The plaintiff alleges three instances of abuse: 

(i) Bullying and sexual abuse committed against him by five students, over a period of time in 1975 (the student abuse). This initially involved sexualised bullying, which the plaintiff said commenced within 2-3 weeks of him starting Form 1 at the College. The plaintiff alleges that one evening in the gymnasium, these five students forced him to the ground and took turns to ‘dry hump’ him (the gym incident). The plaintiff alleges that the erect penis of at least one of the five students partially penetrated his anus. The plaintiff also alleges that soon after the gym incident, he was assaulted by one of the five students when he was sleeping in his bed in the boarding house. 

(ii) Abuse committed against him by Br John Frith (Br Frith), a brother of the defendant’s order, in 1975 or 1976. The plaintiff said that he had attended upon Br Frith in the College infirmary and complained of a sore throat. The plaintiff alleges that in the process of Br Frith examining him, Br Frith placed one of his hands down the back of the plaintiff’s pants and, without warning, pushed his finger into the plaintiff’s anus (the Frith abuse). 

(iii) Abuse committed against him by Mr Edward Mamo (Mr Mamo), in the College laundry in 1976 or 1977. At the time, Mr Mamo was a brother of the defendant’s order.[3] The plaintiff alleges that as a punishment for having been caught smoking cigarettes, Mr Mamo instructed him to drop his pants and underpants, and bend over a chest, following which Mr Mamo proceeded to strap the plaintiff’s bare buttocks twice, using hard strokes with a pause of 3 to 5 seconds between each (the Mamo abuse). 

Supreme Court of Victoria Trial: Claim Dismissed with Costs

On 20 December 2024, following a trial of the claim, the Supreme Court of Victoria dismissed the plaintiff’s proceeding with costs.  

Notice of Appeal

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. 

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. 

Additional Appeal Ground

Based on the fresh evidence that the applicant plaintiff seeks to adduce, the applicant applies to add a further ground, namely: 

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; 

(f) 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 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. 

In relation to proposed ground 10(a), the Court provided as follows at [54]:  

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. 

In relation to proposed ground 10(b), the Court provided as follows at [57]:  

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. 

Ultimately, on 11 July 2025, the Victorian Court of Appeal gave leave to the applicant plaintiff 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 are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today. 

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