Clifford (a pseudonym) v The Corporation of the Society of the Missionaries of the Sacred Heart [2025] VSCA 169 (Link to AUSTLII).
With thanks to Jane McCullogh for drawing my attention to this decision. The focus is a little unusual, in that there was an application to amend a notice of appeal to add an argument that the trial miscarried by reason of the respondent’s failure to disclose (pursuant to s 26 of the Civil Procedure Act 2010 (Vic)) or discover documents in its possession, custody or power, relating to allegations of sexual misconduct on the part of two witnesses called by the respondent at trial. The documents were relevant not only for credit of the witnesses, but in relation to the core issues in the claim as to whether the alleged abuse occurred and whether the defendant was negligent.
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.([47]).
The court held 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.
A similar result followed in relation to the Frith documents ([57]).
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