Plaintiff v Defendant

1. Shane Gregory Mahar, the plaintiff, seeks that he and his solicitors, Rightside Legal ('RL'), be released from the implied undertaking and their obligations imposed by s 27(1) of the Civil Procedure Act 2010 (Vic) ('CPA') regarding two letters discovered by the Corporation of the Society of the Missionaries of the Sacred Heart, the defendant, so that they may be produced in proceeding S EAPCI 2025 0029 Clifford v the Corporation of the Society of the Missionaries of the Sacred Heart ('Clifford appeal') .

1. Both parties rely on both their written and oral submissions.
2. I have read the affidavits of:

(a) Ms Nicole Joseph, solicitor for the plaintiff, affirmed 3 July 2025; and

(b) Mr Timothy Joseph Litherland, solicitor for the defendant, sworn 15 August 2025.

1. Mr Mahar alleges that he was physically and sexually abused by Fr Paul Castley ('Castley') and other teachers or staff of Monivae College, Hamilton in the State of Victoria (the 'College').[1] He alleges the abuse occurred while he was a student boarding at the College from approximately 1962 to 1966.
2. On 27 March 2025, the defendant's solicitor says it discovered Castley's personnel file, which included two letters authored by Fr Mooney ('Mooney'). The defendant's solicitor deposes that these documents were discovered as they were relevant to the question of whether the Mr Mahar had been physically abused by Castley.[2]
3. The first Mooney letter is dated 2 February 1971 ('2 Feb 71 letter'). The letter largely describes events surrounding Castley's relationship with an unnamed woman in late 1969. It alleges she tried to convince Castley to leave the priesthood and marry her. The letter reports that Castley did not want to have a relationship with her and that attempts were made to separate them.[3] The following passage from this letter describes acts of violence against her:

The Saunders and I were worried also that we might have a murder on our hands!! [Castley] had already pushed her over, had pushed her out of the car and had hurt her physically in his various efforts to shake her off. This was all part of his problem. When [Castley] gets worked up he gets violent as Fr. Fyfe knows... [4]

1. The same passage continues to describe that Fr Luby ('Luby') reported to Mooney that Castley assaulted an unnamed 'Filipino lad':

Fr. Luby told me that he nearly sparked off an "international crisis" (as Tom put it) on one occasion when he violently pushed a Filipino lad down the stairs at Monivae.[5]

1. The second Mooney letter is dated 20 February 1971 ('20 Feb 71 letter'). The letter largely describes what others have reported to him about Castley, most relevantly, Castley's relocation to Brisbane and the same unnamed woman's continued pursuit of him.[6]
2. Collectively I shall refer to these letters as the 'Mooney letters'.
3. On 9 July 2025, the plaintiff filed a summons which sought,
   1. That the plaintiff and Rightside Legal be released from the obligation that arises under s 27(1) Civil Procedure Act 2010 in relation to the following specific documents, discovered by the defendant on 27 March 2025. Those documents are:

(a) Letter from Fr Bede Mooney dated 2 February 1971

(b) Letter from Fr Bede Mooney dated 20 February 1971

1. That the described at 1 (a) and (b) above can be used by the applicant in proceeding S EAPCI 2025 0029 Clifford v The Corporation of the Society of the Missionaries of the Sacred Heart, who is also a client of Rightside Legal.

1. Colin Biggers & Paisley Lawyers ('CBP') act for the defendant in both this proceeding and the Clifford proceeding, referred to below.

1. RL acted for the plaintiff, Elliot Clifford, in S ECI 2022 03995 Elliot Clifford (a pseudonym) v the Corporation of the Society of the Missionaries of the Sacred Heart ('Clifford proceeding'). RL continue to act on behalf of Mr Elliot as applicant in the Clifford appeal.[7]
2. At the trial of his proceeding, Mr Clifford alleged that whilst attending the College between 1975 and 1980, he was:

(a) sexually and physically abused by five students;

(b) sexually abused by Br John Frith ('Frith'); and

(c) physically and sexually abused by Br Edward Mamo ('Mamo').

1. The defendant denied that it was negligent or liable for Mr Clifford's sexual abuse.[8]
2. Mr Mahar, along with other former students of the College, gave evidence in Mr Clifford's trial to corroborate Mr Clifford's assertion that there was a culture of violence at the College, the seriousness of which was not appreciated by students and staff. It was submitted that this was relevant to the question of the Court's assessment of the risk of assault and sexual abuse in circumstances where students were discouraged from reporting abuse through fear of physical punishment.[9]
3. The defendant denied there had been a culture of violence at the College, and called Fr Malcom Fyfe ('Fyfe'), who was College Rector between 1969 and 1977 as a witness. Fyfe denied there was a culture of violence at the College and said that he was unaware of Castley's alleged violent behaviour.[10]
4. The defendant says that at the start of Mr Clifford's trial on 27 August 2024, the Court ordered the discovery of any complaints of abuse at the College made before 1976 or relating to any investigations into the abuse of children.[11]
5. In relation to the unnamed 'Filipino lad' Mr Litherland deposes that,

(a) neither of Mooney's letters constituted a 'complaint';

(b) neither letter named the person said to have been pushed or identified them as a student;

(c) the Mooney letters make clear that he did not have direct knowledge of the incident he was reporting; and

(d) a member of the defendant's professional standards and safeguarding office says that they did not receive any claim regarding Castley pushing a 'Filipino lad' down the stairs.[12]

1. At Mr Clifford's trial a further amended statement of claim dated 30 August 2024 ('FASOC') was filed. It included the following plea:

23A. Prior to the Frith abuse, the Order knew or ought to have known that there was a risk that students would be physically and sexually abused by Brothers of the Order and/or staff members at Monivae.

PARTICULARS OF KNOWLEDGE

...

(f) Other Brothers and teachers including. Fr Welsh, Mr Walsh, Fr Castley and Br Gallagher were violent to children, including by strapping them until they had welts that bled, prior to 1975.[13]

1. Mr Litherland deposes that Castley left the College in 1970, five years prior to Mr Clifford's allegations.[14]
2. On 20 December 2024, the Court published Clifford v Missionaries of the Sacred Heart ('Clifford trial judgment'),[15] finding in favour of the defendant.
3. RL says that Fyfe's antecedents and good character were led and relied upon by the defendant in Mr Clifford's trial, with the Court finding that he was a credible and reliable witness.[16] Regarding the alleged culture of violence at the College, the Court accepted Fyfe's evidence and rejected Mr Clifford's submissions.[17]
4. RL says that Mr Clifford's pleadings expressly contended that, '[t]hose in authority, including Mamo, themselves inflicted excessive corporal punishment together with sexual abuse, thereby contributing to the culture' [of violence between students].[18] They further alleged that the physical abuse committed by the College's staff members, including Castley, were relevant to Mr Clifford's claim.[19]
5. In light of the Mooney letters, RL say that Fyfe's evidence in Mr Clifford's trial as to the culture at the College is unreliable, and that the defendant failed to discover the Mooney letters.[20]

1. I gratefully adopt the following summary given by the Court of Appeal in an interlocutory ruling handed down in the Clifford appeal, following an application made by Mr Clifford to amend his notice of appeal:
   1. 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.
   2. 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

1. 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').

1. The applicant's claim, as pleaded, was based on negligence and breach of a non-delegable duty by the respondent.
2. 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.
3. In a reserved decision 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. 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.

(2) The judge was not satisfied, on the balance of probabilities, that the Frith abuse occurred.

(3) The judge was satisfied that the Mamo abuse occurred. The judge was not satisfied that the respondent had actual knowledge that Brothers at the College, including Mamo, had previously sexually abused students. Further, her Honour was not satisfied that the respondent ought to have foreseen a risk that Mamo would sexually abuse the applicant. 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.

Application for leave to appeal

1. 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.

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

   1. 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.[21]

1. Mr Clifford was granted leave to amend his notice of appeal to rely on the tenth ground.
2. In considering the evidence of Fyfe, the Court of Appeal held:

Ground 10 (a) - analysis and conclusion

1. 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.
2. 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".

1. 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.
2. 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. 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.
3. 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. 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. 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.
4. 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. 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.[22]

1. Sections 26 and 27 of the CPA are to be read together.

26 Overarching obligation to disclose existence of documents

(1) Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control -

(a) of which the person is aware; and

(b) which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

(2) Disclosure under subsection (1) must occur at -

(a) the earliest reasonable time after the person becomes aware of the existence of the document; or

(b) such other time as a court may direct.

(3) Subsection (1) does not apply to any document which is protected from disclosure -

(a) on the grounds of privilege which has not been expressly or impliedly waived; or

(b) under any Act (including any Commonwealth Act) or other law.

1. Protection and use of information and documents disclosed under overarching obligation in section 26

(1) A person who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with the overarching obligation in section 26 is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the civil proceeding.

(2) The obligation under subsection (1) is taken to be an obligation to the court, contravention of which constitutes contempt of court.

(3) A person -

(a) may agree in writing to the use of information or documents otherwise protected under subsection (1); or

(b) may be released from the obligation imposed under subsection (1) by leave of the court.

(4) Without limiting this section or discovery in any civil proceeding any information or documents exchanged in compliance with the overarching obligation in section 26 is required to be discovered in the civil proceeding to be admissible in that proceeding.

(5) Nothing in this section limits any other undertaking to a court (implied or specific) whether at common law or otherwise, in relation to information or documents disclosed or discovered in a civil proceeding.[23]

1. The principles relevant to applications under s 27(3)(b) of the CPA and the release of a party from Harman obligations are well-established. I gratefully adopt the principles given by Digby J in Williams v TT-Line[24] ('Williams'):

Legal principles

[31] Section 27(1) of the CPA imposes an obligation upon any person to whom the overarching obligations apply and who receives information or documents provided by another person in a civil proceeding as a result of disclosure made in accordance with s 26 of the CPA, not to use the information or documents other than in connection with the civil proceeding in which the information or documents were produced.

[32] This obligation is the statutory equivalent of the common law obligation in the nature of an implied undertaking to the Court pursuant to which documents are produced, commonly referred to as the 'Harman undertaking', see Harman v Secretary of State for Home Affairs, and recognised in Australia in Hearne v Street.

[33] In considering whether to make an order under s 27(3)(b) of the CPA releasing a party from its obligation under s 27(1), the Court will generally be guided by principles developed in relation to granting release from a common law undertaking.

[34] Both Williams and TT-Line rely on the Federal Court of Australia decision in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (Springfield Nominees) as authority for the proposition that there must be 'special circumstances' which afford good reason for releasing a party from its obligation under s 27(1) of the CPA.

[35] Accordingly, the Court will exercise its discretion to release a party from the obligation not to disclose or use documents for purposes other than the proceedings in which they are produced or disclosed where 'special circumstances' are sufficiently identified.

[36] In describing such 'special circumstances' in Springfield Nominees, Wilcox J observed that it was neither possible nor desirable to state an exhaustive list of matters that might justify the grant of release from the obligation under s 27(1), stating that:

For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.[25]

1. I also gratefully adopt Connock J's overview of authorities given in Goulburn Valley Grammar School Limited v Liberty Mutual Insurance Company.[26]

1. The Mooney letters concern the abusive conduct of Castley, and the knowledge of the abuse by Fyfe.
2. The release from the implied undertaking is sought to adduce the letters as further evidence in the Clifford appeal and is done so with Mr Mahar's consent.
3. As in this proceeding, Mr Clifford's claim also involved allegations of physical and sexual abuse at the College, and questions regarding the College authorities' state of knowledge in relation to the risk of abuse. In both proceedings, the same defendant has denied negligence. The abuse of Mr Mahar occurred before the abuse of Mr Clifford.
4. The application for leave to appeal in Clifford is listed for hearing on 17 November 2025. Grounds 1, 3, and 6 concern the foreseeability of abuse of students at the College. Ground 10 contends a miscarriage of justice arising from the inadequacy of the defendant's discovery. The Mooney letters are relevant to the appeal and go to whether the finding of liability was wrong, the abuse was foreseeable and, if there was a miscarriage of justice.
5. The Clifford appeal has already been the subject of an interlocutory ruling, with the Court of Appeal affirming that,

(a) further evidence relevant to the grounds may be admissible;

(b) Mr Clifford ought to have leave to amend his grounds of appeal and include a ground on the miscarriage of justice, alleged to have occurred as a consequence of the defendant's defective and incomplete discovery; and

(c) it would ultimately be for the Court hearing the substantive appeal to determine what should be made of that evidence and those grounds of appeal.

1. The Court may release a party from the implied undertaking in its inherent jurisdiction or per s 27(3) of the CPA. These are special circumstances and the Court's discretion should be exercised in favour of Mr Mahar for the following reasons.
2. A central aspect of the claim in Mr Clifford's trial was the 'culture of violence' at the College. Pleadings included that:

(a) there was a foreseeable risk of injury;

(b) those in authority at the College themselves inflicted excessive corporal punishment together with sexual abuse;

(c) the defendant's negligence included:

(i) a failure to prevent a culture of severe physical abuse of students;

(ii) allowing a culture of violence to flourish which had the effect of stopping or discouraging students reporting physical and sexual abuse;

(d) exemplary damages as a consequence of the defendant allowing a culture of violence to flourish at the College.

1. Firth and Mamo abused Mr Clifford. Fyfe was a critical witness for the defendant in Mr Clifford's trial. A crucial issue was whether the abuse was foreseeable at the time it occurred.
2. In the Clifford trial judgment, the Court held that:

(a) any failure on the part of students to report the abuse was not a consequence of the culture of violence;

(b) Fyfe, as College Rector, did not know of any prior occasions of abuse by staff; and

(c) the risk of abuse by a Brother at the College was not reasonably foreseeable.

1. Mr Clifford's claim was therefore dismissed.
2. Mr Mahar gave evidence in Mr Clifford's trial in relation to the violent abuse he suffered as perpetrated by Castley. That evidence was relevant to the foreseeability of abuse of students by staff and the existence of a culture of abuse at the College. Castley was expressly named in paragraph 23A(f) of the FASOC. His violent conduct was pleaded as being within the defendant's knowledge, and particularly, that students of the College would be physically and sexually abused by Brothers or staff of the defendant. At paragraph 26 of the FASOC it was alleged that there was a failure of the defendant to take reasonable steps to ensure Frith did not abuse children and it is particularised that the defendant failed to develop an effective system for removal of Brothers unsuitable to be engaged in the care of minors, and at sub-paragraphs (t) and (u) that there was a culture of abuse. At paragraph 30 of the FASOC there is a similar plea with respect to Mamo.
3. In the opening of the trial, counsel for Mr Clifford submitted that the environment at the College was violent and intimidating, and normalised violent and sexually inappropriate behaviour engaged in by staff and students. This was said in respect to the abuse perpetrated by Castley and others.[27]
4. Fyfe was cross-examined. Under cross-examination, he denied he knew that teachers at the College flew into a rage when delivering punishment.[28] In the absence of the Mooney letters, the cross-examiner was unable to take the matter further. But on their face, the Mooney letters directly tend to undermine Fyfe's evidence on a critical issue. They suggest he did know in 1971 that teachers at the College perpetrated violent abuse, that their violent temper was a matter of notoriety, and that it was known to him that when Castley 'gets worked up he gets violent'. It appears Fyfe's evidence at trial was inaccurate, incomplete, unreliable, unimpressive or worse.
5. The Mooney letters are directly relevant to the central issue Mr Clifford's proceeding: whether abuse by staff of students at the College was reasonably foreseeable to the defendant in 1975 and 1977, when Mr Clifford was abused, and therefore whether the defendant's response to foreseeable risks was negligent. The 2 Feb 71 letter refer to Castley cracking under pressure. It refers to him getting violent when worked up, and pushing a Filipino student down stairs. The Court could consider that Fyfe knew of and had concerns about Castley's conduct and had a duty to warn others. Whether Fyfe personally knew of the incident with the Filipino student is less of an issue than multiple other Brothers knowing. It is the defendant's knowledge, not Fyfe's alone.
6. The 20 Feb 71 letter gives context to the 2 Feb 71 letter, including the address of the Saunders family and a reference to the woman in question. It refers to Castley's bad nerves. There is a link with Castley's violent conduct in the 2 Feb 71 letter. Both letters give rise to concrete evidence that could have been, but was not deployed Mr Clifford's proceeding.
7. The defendant's failure to discover the Mooney letters hampered Mr Clifford's ability to cross-examine Fyfe, and to test his credibility and reliability. Fyfe was the defendant's central witness. His evidence is a central issue in the appeal.[29] There is a question about whether the non-disclosure of the Mooney letters (and other documents) could justify a re-trial because of a miscarriage of justice.
8. Relevant matters favour the release of the obligations: there is no prejudice to the defendant or others, there is a subject matter overlap between this proceeding and the Clifford appeal, Mr Mahar was a witness in Mr Clifford's trial in support of the claim of a culture of violence, there was defective discovery by the defendant in Mr Clifford's proceeding, there were no untoward circumstances by which Mr Mahar obtained the documents, and the collateral purpose for the use of the documents in the Clifford appeal is permissible and legitimate.
9. The use of the Mooney letters in the appeal is likely to have the effect of achieving substantial justice in the proceeding.
10. This Court cannot decide on the admissibility of documents. That is for the Court of Appeal. So too the issue of whether the documents are critical. In reply to the defendant: R v Silverstein[30] ('Silverstein') is distinguishable - the documents in that case were not subject to any compulsion to produce.

1. Mr Mahar's application should be dismissed for two reasons, one technical, the other substantive.

The operation of s 27 of the CPA - the technical reason

1. The defendant submits that s 27(1) of the CPA does not attach to all documents disclosed in a proceeding, only attaching to those disclosed 'in compliance with the overarching obligation in section 26' of the CPA. This conclusion is evident from the language of the provision itself, relying on the Court of Appeal's decision in Silverstein by analogy where the Court found:

[t]he protection specified in s 27 of the Civil Procedure Act extends only to information or documents which have been disclosed pursuant to the overarching obligation contained in s 26. As the affidavits in question were not supplied pursuant to that obligation, s 27 did not apply to them.[31]

1. Although the Mooney letters were discovered in this proceeding, they were not disclosed pursuant to the overarching obligations contained in s 26 of the CPA. This is sufficient to dispose of the application.

No 'special circumstances' for release - the substantive reason

1. When assessing whether special circumstances exist, the matter of particular importance is whether the released documents are likely to contribute to achieving justice in the Clifford appeal. The plaintiff has not shown that special circumstances exist for the release of the Mooney letters.
2. The 2 Feb 71 letter is only relevant to the credibility of Fyfe. The 20 Feb 71 letter is completely irrelevant to any disputed issue in Mr Clifford's proceeding. Neither letter was discoverable in that proceeding. The letters are not admissible in the Clifford appeal. This is because even if they had been adduced in Mr Clifford's proceeding, they could not have produced an opposite result.
3. Mr Mahar has three difficulties with his submissions.
4. First, Mr Mahar overemphasises what the Mooney letters evidence, alleging that they show Fyfe had known that Castley had a propensity for violence, and that members of the defendant knew that Castley had physically abused a student of the College.
5. The letters have the following relevant evidentiary features.

(a) They are documentary hearsay and their admissibility is highly doubtful.

(b) They postdate Castley's appointment at the College - he left in 1970.

(c) The 20 Feb 71 letter does not concern Fyfe, or any violence or physical abuse by Castley. It concerns his relationship with an unnamed adult woman. There is no suggestion of any sexual relationship.

(d) The 2 Feb 71 letter concerns Castley's dealings with the same woman, that he pushed her over, pushed her out of a car, and physically hurt her in attempts to 'shake her off', as Fyfe knows when Castley 'gets worked up he gets violent', and Luby had told Mooney that Castley had 'on one occasion ... violently pushed a Filipino lad down the stairs' at the College. Only the suggestion that Fyfe knew that Castley gets violent when worked up asserts any knowledge on Fyfe's part, but there is no assertion that Fyfe had any specific knowledge of any violence by Castley. There is an assertion of violence on one occasion by Castley, however, it is unclear whether Luby had personal knowledge of the incident. There is no suggestion Fyfe had any knowledge of the asserted incident. Whether the unnamed 'Filipino lad' was a student is not clear. His response under cross-examination that he would not know about teachers flying 'into a rage' while delivering punishment is reasonable. He was not in the classroom.

(e) The Mooney letters are at least four years before any allegation by Mr Clifford. Cultures change over time. The letters are written with a dramatic flurry.

1. Second, the Mooney letters are not crucial to Mr Clifford's case. Mr Mahar wrongly assumes that they should have been discovered or disclosed per s 26 of the CPA. This is incorrect.[32] The 20 Feb 71 letter is entirely irrelevant. There is nothing about physical or sexual abuse of students at the school or by Castley. The 2 Feb 71 letter might have been relevant to the extent it contained a representation that Fyfe knew Castley 'gets violent' when 'worked up' and might have been relevant to testing Fyfe in cross-examination. However, documents which relate solely to the credit of a witness are not discoverable.[33] Moreover, the discovery obligation is limited to the documents of which a party is aware 'after a reasonable search' per r 29.01.1(3) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'). This rule did not require the defendant to trawl through personnel files of persons not subject to allegations and who had worked at the College sometime before 1975. A reasonable search is not a perfect search.[34]
2. Third, as the letters were not discoverable in Mr Clifford's proceeding, the Court of Appeal would need to permit Mr Clifford to rely upon the letters as further evidence per r 64.13(2) of the Rules. This would require the Court of Appeal to conclude that it is reasonably clear that the letters would have produced the opposite result. There is no prospect the Court of Appeal would reach such a conclusion. Mr Clifford's claim failed for reasons unconnected with Fyfe's evidence. The trial judge was not satisfied the Frith abuse occurred. The Mamo abuse failed on reasonable foreseeability, on which Fyfe gave material evidence, but it is evident from the balance of the primary judge's reasons that the claim was bound to fail on breach because Mr Clifford failed to adduce evidence as to the reasonable precautions said to be required.
3. The FASOC was only produced on the third day of trial. This should be borne in mind regarding the discovery obligation.
4. The defendant submits that an absence of special circumstances exist because,

(a) of the two Mooney letters, one is irrelevant to any disputed issue in Mr Clifford's proceeding, the other is only relevant to the credibility of Fyfe;

(b) neither letter was discoverable in Mr Clifford's proceeding, or required to be disclosed per s 26 of the CPA; and

(c) there is no prospect the letters could contribute to the achievement of justice in Mr Clifford's proceeding, as they would not have been admitted in that proceeding. Even if they had been produced, it would not have produced an opposite result.

1. There is common ground between the parties on two issues.
2. First, they both proceeded on the basis that the implied undertaking applies.
3. Second, they both acknowledge the defendant produced the documents under compulsion, namely the discovery process, in this proceeding.
4. The real issue in dispute is whether special circumstances exist to release Mr Mahar from the implied undertaking.
5. I find that special circumstances do exist for the following reasons.
6. First, there is a common defendant in this proceeding and in Mr Clifford's proceeding_,_ and both proceedings concern allegations of abuse at the same school. Although the period in which the alleged abuse occurred is some four years apart, it is not so distant that Mr Mahar's evidence was deemed to be irrelevant in Mr Clifford's trial.
7. Second, there is a real likelihood that the Mooney letters may be relevant to issues in the Clifford appeal. Both Mooney letters predate the alleged abuse of Mr Clifford by Frith and Mamo. The appeal challenges the findings that the defendant was not negligent, and that the defendant was not liable for breach of the non-delegable duty. By paragraph 23A(f) of the FASOC, an issue in dispute at the trial was the defendant's knowledge of physical and sexual abuse by Brothers at the College, including Castley, before the Frith abuse in 1975. By paragraph 26 of the FASOC it is alleged that the defendant failed to take reasonable steps to ensure Frith did not abuse or continue to abuse children including by, at sub-paragraph (t), failing to stop or prevent a culture of severe physical abuse of students by Brothers, and by sub-paragraph (u), allowing a culture of physical abuse to flourish.[35]
8. The 2 Feb 71 letter may show that the defendant was aware that a brother teaching at the College, namely Castley, had violent tendencies. The 20 Feb 71 letter may provide additional context.
9. Third, the tenth ground of appeal is whether there has been a miscarriage of justice because certain documents were not discovered. Although this ground relates to allegations of sexual misconduct made against Fyfe and Frith, as explained above, Mr Clifford's pleaded case was that this occurred in a culture of physical abuse. Indeed, this appeal ground submits that documents concerning allegations of sexual misconduct are directly relevant to, amongst other things, the actual knowledge of the defendant in relation to the risk of sexual or physical abuse of the Mr Clifford, and the reasonable foreseeability of the risk of sexual or physical abuse of Mr Clifford.
10. Fourth, the credibility of Fyfe's evidence is a central issue in the appeal.[36] The 2 Feb 71 letter may be relevant to his knowledge.
11. Fifth, the defendant has not identified any prejudice in the disclosure of the Mooney letters.
12. Given the findings above, it is unnecessary to decide whether the documents may be disclosed per s 27 of the CPA. However, I do observe that there is real force in the defendant's submission that the Mooney letters are not critical documents per s 26 of the CPA.
13. Finally, whether or not the Mooney letters are admissible in the appeal proceeding is a matter for the Court of Appeal. Similarly, it is unnecessary for me to make findings about whether or not the Mooney letters ought to have been discovered in Mr Clifford's proceeding.
14. I will make orders releasing Mr Mahar and RL from the implied undertaking.

[1] Mahar further amended statement of claim filed on 19 August 2025, [1], [12]-[13].

[2] Affidavit of Timothy Joseph Litherland sworn on 15 August 2025, [6] ('Litherland affidavit').

[3] Exhibit 'NJ-1' of the affidavit of Nicole Joseph affirmed 3 July 2025, 1-3 ('Joseph affidavit').

[6] Exhibit 'NJ-1' of the Joseph affidavit, 4-5.

[10] Exhibit 'NJ-1' of the Joseph affidavit, 13; Joseph affidavit, [9]; Litherland affidavit, [9].

[13] Exhibit 'NJ-1' of the Joseph affidavit, 21.

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

[18] Exhibit 'NJ-1' of the Joseph affidavit, 13; Joseph affidavit, [14].

[21] Clifford (A Pseudonym) v Corp of Society of Missionaries of Sacred Heart [2025] VSCA 169, [1]-[8] (Lyons, Kaye and Kenny JJA) (citations omitted) ('Clifford appeal interlocutory ruling').

[22] Clifford appeal interlocutory ruling, [48]-[54] (citations omitted).

[23] Civil Procedure Act 2010 (Vic), ss 26-27.

[24] [2021] VSC 150.

[25] Ibid [31]-[36] (citations omitted).

[26] [2025] VSC 467, [16]-[17].

[27] Exhibit 'NJ-1' of the Joseph affidavit, 30.

[29] Clifford appeal interlocutory ruling, [54].

[30] [2020] VSCA 233 (Kyrou, Kaye and McLeish JJA).

[32] Mullett v Nixon [2022] VSCA 174, [86]-[87].

[33] Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, 345 (Menzies J); Beecham Group Ltd v Bristol Myers Co [1979] VicRp 27; [1979] VR 273, 277 (Menhennitt J); Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109, [70] (Beaumont J). See also, Orman v Gobbo (No 2) [2025] VSC 110, [11] (Keogh J).

[34] Pearce v Waller Legal [2025] VSC 324, [78]: quoting Volunteer Fire Brigades Victoria v CFA [2016] VSC 573 at [36] (J Forrest J).

[35] Similar allegations are made in respect of the alleged Mamo abuse in paragraphs 28A(f) and 30(z) and (aa) of the FASOC in Clifford.

[36] Clifford appeal interlocutory ruling, [54].