A prominent Catholic order failed to disclose the sexual misconduct of a key witness during a Supreme Court trial, which has prompted an appeal and is likely to result in a retrial.
Missionaries of the Sacred Heart also failed to provide the court with crucial documents that contained evidence of alleged sexual misconduct concerning former Monivae College teacher Brother John Frith.
Monivae College in Hamilton, in western Victoria.Credit: Ashleigh McMillan
Comments made by Court of Appeal Justice David Beach indicated a fresh civil trial was likely because of the serious disclosure breaches, which the appeals court bench ruled had likely skewed the outcome of the original hearing.
“Three other judges of this court could spend two days doing this, or the parties could come to the conclusion that it’s blindingly obvious – their words, not mine – that whatever happens, there has to at least be a retrial,” said Beach at a hearing on November 14.
Lawyer Michael Magazanik from Rightside Legal, which represented the plaintiff, said his client had suffered significant mental health issues since attending Monivae College in the 1970s, but his trauma had been exacerbated by the Catholic order’s misconduct during the trial last year.
“Having endured a painful trial and devastating loss, my client now knows the missionaries withheld masses of critical information from him,” Magazanik told this masthead.
Lawyer Michael Magazanik says his client has suffered significant mental health issues since attending Monivae College in the 1970s.Credit: Penny Stephens
“Going to trial and being cross-examined are difficult experiences for any survivor of childhood sexual abuse. But to have to do that in legally unfair circumstances is especially disturbing and distressing.”
The former Monivae student launched civil action against the Missionaries of the Sacred Heart (MSC) in 2022 alleging Frith and another staff member, Brother Edward Mamo, had abused him at the boarding school in Hamilton, in western Victoria.
The student also alleged he was subjected to horrific bullying at the hands of fellow students, which culminated in what his lawyer described as a “gang rape”.
The plaintiff, who was given the pseudonym Elliot Clifford to protect his identity, sued MSC, which runs Monivae College, for negligence and fostering a culture of violence that discouraged students from reporting bullying.
The court heard the abuse Clifford suffered as a student caused the now 62-year-old a lifetime of psychiatric harm.
Lawyers acting for the Catholic order called several witnesses, including Father Malcolm Fyfe – the rector and principal of the college at the time of the alleged abuse – and Frith during the 14-day trial held in September 2024.
The trial judge, Justice Andrea Tsalamandris, found Fyfe to be an “impressive witness” with a “very good memory”. She relied heavily on his evidence, and while she accepted that Clifford had been subjected to some of the abuse, cleared the order of any liability.
“[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,” Tsalamandris noted in her judgment, which was handed down in December 2024.
Father Malcolm Fyfe, the former rector of Monivae College. Credit: Missionaries of the Sacred Heart
Tsalamandris also dismissed Clifford’s accusations against Frith, whom he accused of sexual abuse during medical examination, which he said occurred after the student arrived at the school infirmary complaining of a sore throat.
“The plaintiff and Brother Frith both gave credible evidence. Neither was more compelling than the other,” the judge noted.
However, she ultimately concluded: “I am not actually persuaded that the Frith abuse occurred.”
But fresh evidence obtained after the trial revealed the religious order failed to disclose that Fyfe was recently under internal investigation for sexual misconduct while he was a teacher at Monivae in the late 1960s.
In November 2024, before the judgment against Clifford was handed down, the investigation led by Sydney law firm Element Becroft substantiated allegations Fyfe had groomed and inappropriately touched a student.
Fyfe was also under investigation over allegations of fraud, according to a separate court proceeding obtained by The Age.
The findings against Fyfe were only uncovered after the plaintiff’s lawyer, Magazanik, was contacted months later by another former Monivae student, known by the court as AM.
AM alleged that Fyfe, then his teacher, had “total control” over his life, including taking him on long drives and engaging in “body-to-body” wrestling matches that AM felt were sexually motivated. In one instance, Fyfe allegedly visited the student’s bedroom cubicle, pressed his groin against the boy’s leg, and held his hand while saying, “Tell me how much you love me.”
These allegations were detailed in an interview with AM conducted by an investigator from Element Becroft in February 2024 – six months before the Clifford case went to trial.
The plaintiff alleges he was abused by two staff members at Monivae College in the 1970s.Credit: Damian White
The appeal by Clifford and his lawyers also focused on the Catholic order’s failure to hand over critical documents concerning Frith, despite repeated requests for his complete personnel file.
The documents were discovered by Clifford’s lawyers – again by chance – while working on a separate legal case in May 2025.
The withheld records revealed the order was aware of several allegations against Frith, including an internal memo that detailed an incident where the teacher admitted to watching a boy masturbate without the child’s knowledge.
Another document noted concerns from a provincial superior about Frith’s “arrested personal development”.
Magazanik conceded there had been an element of good fortune in him finding the fresh evidence.
“It was only with hard work, persistence and some luck that led us to uncovering the documents and information which the missionaries denied the plaintiff at trial. At no point after the trial did the missionaries contact us and say that something had gone wrong and we should know about it,” he said.
Magazanik said his client would doggedly pursue his claim against the MSC.
“I’ve observed my client’s determination and there’s no doubt he’ll pursue this appeal to the end, and then, if necessary, and if given the opportunity, get back in the witness box in a fresh trial and tell his story again,” he said.
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In granting Clifford’s application to add to his grounds of appeal, the court found that Fyfe’s evidence was central to the trial judge’s finding that the school was not negligent.
The Court of Appeal judges concluded that had the trial judge known the rector was a substantiated abuser, her assessment of his credibility and his claims of ignorance regarding student safety would have been different.
“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,” the appellate judges wrote.
The appeal judges were satisfied that the withheld evidence could have altered the result of the trial. They noted the withheld documents might have allowed Clifford’s lawyers to identify other victims or pursue lines of cross-examination that were impossible during the original trial.
Despite the finding of sexual misconduct against Fyfe, the church has continued to publicly support the priest, who retired in November 2023.
In September, the Catholic order shared a 90th birthday message for him on its website. The message has since been deleted.
The birthday message was also shared on the Monivae College Old Collegians’ Facebook page, and referenced the time period that Fyfe was found to have groomed and inappropriately touched AM.
The Supreme Court has not approved the release of affidavits filed by the plaintiff’s lawyers despite The Age making a request more than a month ago.
