Federal Court of Australia

Kaplan v State of Victoria (No 3) [2022] FCA 728

ORDERS

THE COURT ORDERS THAT:

1.    The tender of the expert reports of Stephen Paul dated 8 May 2022 and 17 June 2022 be rejected.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicants seek to tender and rely upon two expert reports prepared by Stephen Paul, an educational consultant. There was no challenge to Mr Paul’s expertise. He worked as a senior educational administrator for a period of 27 years. During that time he was employed as both a deputy principal and principal, the largest portion of his working life in this period as a principal. He held those positions at both government and independent schools. This included a period as principal of the largest K-12 school in Queensland, which he describes in his report as “one of the largest in the country with an enrolment of 2,500 students”. Mr Paul retired in 2008, but states that after his retirement he:

has continued to play an active role in the educational sector providing a range of consultancy services to schools, systems and other industry bodies as well as being appointed as chair of a number of education industry boards.

2    Mr Paul’s primary report was filed on 13 May 2022. A supplementary report, addressing some of the additional policies upon which the respondents relied after leave was granted to amend their defence, was filed on 20 June 2022. It is clear that if Mr Paul’s primary report is not admissible, his supplementary report will also not be admissible, as it depends upon, and incorporates, the opinions expressed in his primary report.

3    In broad terms, Mr Paul’s reports concern the adequacy or inadequacy of the response of Brighton Secondary College, in particular its leadership team, to the complaints of anti-Semitic behaviour by staff and students made by or on behalf of the applicants, and by other students. Mr Paul also expresses opinions about the conduct of some of the leadership team and teaching staff, against whom the applicants make specific allegations – namely Richard Minack, Paul Varney and Demi Flessa.

4    The respondents object to the tender of the whole of the primary report. Senior counsel clarified that if the objection was overruled, the respondents did not press any specific objections to passages within the primary report. Their submission is that the difficulty with the primary report is so fundamental that its tender should be rejected entirely. I agree.

5    The objection centres on the instructions given to Mr Paul, and the approach he took because of the way he was instructed. It is also fair to observe, as senior counsel for the respondents conceded, that there are challenges in preparing an expert report of this kind where a trial is to be conducted by way of oral evidence. Nevertheless, part of the forensic choices that must be made by a party in a trial of this kind is how to brief and instruct an expert, and what topics to invite an expert to address. Those choices having been made, the admissibility of the resulting report stands or falls on the application of well-established principles.

6    The letter of instruction to Mr Paul is attached to his primary report. There appears to have been an earlier brief and letter of instruction, but it seemed common ground that the letter of instruction dated 15 April 2022 was the basis upon which he prepared his report. Mr Paul was asked seven questions, with each question broken down into parts:

1.     During the Period, did the School devise, implement and/or maintain an adequate anti-bullying program? In answering this, please include consideration of:

(a)     whether the School put in place all appropriate measures in relation to bullying of Jewish children in particular (to refrain from it and prevent it)?

(b)     were the policies adequately brought to students’ and/or teachers’ attention?

(c)     were the School’s policies effectively implemented during the Period?

(d)     matters such as discipline (including the School’s powers to suspend or expel students), restorative justice and/or reproachment, record-keeping, reporting, education, and training.

(e)     were barriers to children reporting adequately factored into the above?

2.     Relatedly, did the teachers at the School; and/or higher level authorities at the School (Principal, Vice Principal, Coordinators), take adequate steps during the Period to:

(a)     address the Applicants’ complaints (including parents) relating to bullying and/or antisemitic bullying; and

(b)     take all reasonable and necessary precautions for their safety.

3.     In your opinion:

(a)     Were students adequately taught about antisemitism during the Period?

(b)     Were students adequately notified about disciplinary consequences for engaging in antisemitic conduct and/or bullying at the School?

(c)     Were the teachers and staff, including the Principal, adequately taught about antisemitism during the Period?

4.     During the Period, did the staff, including Principal, at the School take adequate steps to:

(a)     remove antisemitic graffiti including Nazi Swastikas from the School’s premises?

(b)     educate students about the meaning of Nazi Swastikas/graffiti?

(c)     prevent the presence of Swastikas at the School?

5.     How would you assess the School’s treatment in relation to bullying of other minority students at the School, such as the LGBTQI+ minority?

6.     How do you assess:

(a)     the Applicants’ complaints made against specific teachers (Mr Varney, Ms Flessa, Mr Hunt, Mr Lyons); and

(b)     the School’s actions/inaction in response to those complaints?

7.     In relation to the Second Respondent (Mr Richard Minack, Principal of the School):

(a)     How would you assess:

(i)     the students’ reactions (Jewish and non-Jewish) to the speeches of the Principal in relation to his German/Nazi father or grandfather?

(ii)     the successfulness and/or appropriateness of the speeches as an educational activity?

(b)     How do you assess the Principal making multiple speeches in which he referred to his father / grandfather as a German or a Nazi?

(c)     Based on the evidence, did the Principal’s conduct, his speeches and other conduct relating to alleged antisemitism at the School during the Period, suggest:

(i)     he treated Jewish children differently as a minority to other students/minorities (including for instance LGBTQI+)?

(ii)     Failed to take reasonable care in relation to Jewish children?

(d)     If the answers to any/all questions above were negative in relation to staff of the School, did the School have an adequate mechanism for holding staff accountable and/or disciplining staff.

7    It is apparent that each question, and each sub-question, required Mr Paul to rely upon the accounts given by witnesses on behalf of both parties, as well as any documents provided to him. It is also apparent that every question required Mr Paul to reach conclusions on matters of fact before expressing an opinion about those facts. To take a simple example, question 2(a) asked Mr Paul to express an opinion about the adequacy of the steps taken by teachers at the school (and “higher level authorities at the School (Principal, Vice Principal, Coordinators)”) to address the applicants’ complaints about “bullying and/or antisemitic bullying”. In order to express an opinion about adequacy, Mr Paul had to consider at a factual level first what complaints were made, by whom, to whom and what the nature of those complaints were, and second what the response of the teachers was, and who responded. It is likely Mr Paul would also have to consider at a factual level the impact or effect of the response in order to express an opinion about its adequacy.

8    These factual matters were not the subject of any evidence, other than documentary evidence; or rather, at that time, proposed documentary evidence – for example, Chronicle entries, emails and letters from parents and the like. Mr Paul did not confine himself to the documentary evidence. He was expressly invited by his letter of instruction not to do so. He was expressly instructed to consider and rely upon the outlines of evidence filed on behalf of the applicants. However, he was not provided with a set of specific factual assumptions based on those outlines. Rather, he was simply given the outlines. Then, in order to answer the seven questions posed to him, and under the heading “Assumptions” in his letter of instruction, he was informed:

11.     For the purposes of your views, please assume our side of the evidence is correct in the first instance.

12.     Does anything in the other side’s evidence cause you any concerns?

13.     Does anything in the other side’s evidence cause you to modify/vary your views. If so, please advise.

9    The respondents’ objection submissions focused on the assumption in [11]. Responsively, the applicants sought to emphasise [12] and [13], but I do not consider they ameliorate or remove the difficulty caused by the overall way in which Mr Paul was instructed to express opinions, and the way in which he did express opinions in the primary report.

10    Counsel for the applicants accepted in argument that “our side of the evidence” referred to all of the applicants’ witness outlines supplied to Mr Paul. And, I infer, any documents attached to those outlines. As I explain below, this forensic choice of a method of instruction left Mr Paul to sift through the various factual accounts given to him, select what he considered to be important or persuasive, and then, having made that selection, express opinions on the basis of that selection. That is how his task wholly miscarried. He became a fact finder.

11    It is well-established that the opinion evidence of an expert must be based on facts either proven or assumed, and if the latter, that the expert must identify with some precision the facts the expert has assumed to be true: see HG v The Queen [1999] HCA 2; 197 CLR 414 at [41]. The expert must differentiate between the facts they have assumed, and the opinion they have formed based on those facts: HG at [39]. In part, that is necessary so that the Court can ascertain whether the opinion expressed falls within their area of expertise and conforms to the legal principles about the giving of opinion evidence. It is also so that, once the Court comes to its fact finding, it is clear to the Court whether the opinion as expressed is properly or adequately based on facts which have been proven by the evidence or otherwise taken to have been established (such as by admission or absence of challenge). If that is not the case, the opinion may be of little probative value to the Court. But these are not matters simply of weight, as Gleeson CJ made clear in HG. They are matters of admissibility.

12    There are some passages from Heydon J D, Cross on Evidence (13th ed, LexisNexis, 2021) which in my respectful opinion clearly explain the underlying rationale for these rules (at 1133-44):

The reason for this rule is that an expert opinion is a bridge between two types of factual conclusion. The first type of factual conclusion relates to what might be called primary facts. The second type of factual conclusion relates to what might be called secondary facts. Primary facts are those to which the specialised knowledge of experts is applied. The application of that knowledge results in the drawing of conclusions by experts. Those conclusions are evidence of secondary facts. The conclusions are conclusions drawn from a combination of the primary facts and of the expert’s specialised knowledge. “Conclusions of medical experts on the cause of an injury or death necessarily involve a process of deduction, that is inferring conclusions from given facts based on other knowledge or experience” [citing R v Holdsworth (2008) 102 BMLR 112 at [57], Toulson LJ].

…

An expert opinion, if it is to help persuade the trier of fact to accept the existence of a fact about which the opinion was expressed, must bear some relationship to the primary facts of the case as eventually found by the trier of fact on the basis of the evidence tendered by the parties. There may be conflicts in that evidence. … It is for the trier of fact to resolve those conflicts. The resolution will often be unpredictable. Normally no prudent expert, and no prudent party calling an expert, can be certain which precise combination of primary facts the trier of fact will eventually find after the evidence has closed and the addresses of the parties are over.

….

But unless those facts (either testified to by the expert or assumed) bear some relationship with the facts eventually found by the trier of fact, the expert opinion given … will be too remote from the primary facts found by the trier of fact to be capable of useful employment by the trier of fact.

13    There follows a reference to HG at [41].

14    As the respondents submitted, the reasons of the Full Court of this Court in Arnotts Ltd v Trade Practices Commission [1990] FCA 660; 24 FCR 313 at 348-51 made these same points. At 351, the Full Court pointed out that if the assumptions on which an opinion is based turn out to be different from the facts as found by the Court, the opinion might be of little value. Nevertheless, the opinion will be admissible if the factual assumptions “are identified and articulated” (at 351). That is the admissibility issue.

15    What cannot occur, as the Full Court in Arnotts makes very clear, is that instead of an expert being asked to assume specific, identified facts that are not yet proven, an expert is invited to “filter the facts” and “express factual conclusions” (at 353). That practice was described by the Full Court in Arnotts as “illegitimate” (at 353). That observation has been applied many times, but as a recent example see Trilogy Funds Management Ltd v Sullivan (No 2) [2015] FCA 1452; 331 ALR 185 at [742]. At [743], Wigney J recognised these matters go to admissibility and not weight. I respectfully agree.

16    This practice trespasses upon the fact finding function of the Court, and draws the expert into the expression of personal views on the facts, and into the role of an advocate for one party. That is how Mr Paul’s expert report reads – as advocating for the applicants’ case. That characterisation stems from the way Mr Paul was instructed, rather than being any criticism of Mr Paul himself. But more critically, the practice referred to in Arnotts obliterates the distinctions between primary and secondary facts described in the passage from Cross on Evidence extracted above, and it renders it impossible for the Court to assess whether any expression of opinion by an expert falls within their area of expertise, or is no more than a preference by the expert for the account of one witness over another.

17    In argument, senior counsel for the respondents provided a number of examples. He referred to the primary report at [64], [66], [83], [85], [89] [90] and [93]. I turn to some of these below.

18    At [64]:

A significant part of the defence by the Defendants was that they were not aware or had no record of the complaints made by the Applicants and others. In light of the foregoing, I would opine that this was not, as has been inferred, that the complaints were not made, but probably rather that the record keeping of the school was so shambolic that no record was taken or even maintained.

19    Whether or not certain complaints were made is a material fact in this case. An expert might expressly state they have assumed complaints A, B and C were made and on that basis express an opinion based on their specialised knowledge about what the appropriate response from school leadership to those particular complaints might have been. That is not what Mr Paul does. Instead, he makes a selective finding, or speculates, about what at a factual level was the explanation for there being no record of the complaints. That was no part of his role as an expert.

20    At [85]:

Finally, it appears that BSC has a range of CCTV cameras around the school. I wryly note that Richard Minack was apparently never able to detect a student posting a swastika by this methodology but was able to detect the student who widely emblazoned “the N…. word” following his speech which will be discussed more fully in responding to Question 7 below.

21    In its expression, this statement becomes inappropriately personalised, but putting that to one side it is again no more than fact finding by a selection of various parts of the statements in the outlines, apparently including the respondents’ outlines. The point is there has been a selection of facts, unarticulated as to why or how, accompanied by an apparent ‘finding’, and then an argument to advance the applicants’ cause. This travels far beyond an assumption of a particular stated fact. Further, and tellingly, there is no application of any specialised knowledge or expertise in this conclusion.

22    Counsel for the applicants sought to minimise the situation by submitting those examples were, proportionally, a small part of Mr Paul’s report. That submission ignores the fact that what was given by the respondents were no more than examples. As I observed during argument, Mr Paul’s report is replete with other passages of which the same criticism could be made.

23    For example, the respondents referred to one part of [43], but the second part has a similar flaw:

In my view, the summation of the school’s attitude to the phenomenon of regular swastika graffiti is perhaps best reflected in the Witness Outline of Jules Paul (4.23(a)) where he stated “BSC never cracked down on that. It is obvious that the schoolteachers did not care about it …”.

24    This is Mr Paul becoming a fact finder, selecting the statements of Jules Paul as primary facts and accepting them. He expresses in [43] no opinion based on his specialised knowledge, but rather reaches a conclusion of the kind which is, at the end of the trial, the function of the Court to reach or reject – namely, that the school was “indifferent” to the anti-semitic bullying and graffiti.

25    At [46]:

[speaking to students involved directly in the behaviour] did occasionally occur but, as will be further outlined below in answering question 2, this was singularly ineffective with repeat offenders and an absence of mediation or restorative justice procedures to seek to formalize an ongoing positive relationship between the protagonists.

26    Again, this is the sifting of facts from witness outlines by Mr Paul and the expression of a factual conclusion no different to one the Court might (or might not) reach. In contrast, Mr Paul could have legitimately given evidence about how restorative justice procedures work in a secondary school in the context of bullying between students, what they involve and what any studies show about how effective they are. That might have been a proper subject for expert evidence.

27    Paragraph [53], not one given by the respondents, is a good example of how this fact finding by Mr Paul then transforms into argumentative propositions, and into him appearing to be an advocate for the applicants (even putting to one side the pejorative language used about other students):

I could not help but wonder why Mr Minack is not able to broker an “assisted transfer” for this student and approach other schools when he is quite willing to do this for Zack Snelling when he and his parents indicate that he is unhappy at BSC because of the antisemitic bullying he is experiencing, largely at the hands of Ramin and his cronies.

28    The examples I have given suffice, but it should be clearly understood, and I repeat, that Mr Paul’s primary report is replete with these flaws. Proportionally, they constitute an overwhelming majority of the report.

29    The applicants will not be permitted to rely upon the primary and supplementary reports of Mr Paul. Their tender is rejected.

Associate:

Dated:    22 June 2022

SCHEDULE OF PARTIES