Federal Court of Australia

Kaplan v State of Victoria (No 4) [2022] FCA 897

ORDERS

THE COURT ORDERS THAT:

1.    Subject to order 2, the applicants have leave to tender and rely upon the further report of Stephen Paul dated 22 July 2022.

2.    The objections of the respondents to the further report be determined as follows:

(a)    the objections to [5]-[9] and one sentence in [20] of the further report be overruled;

(b)    the objection to the second sentence in [20] of the further report be upheld; and

(c)    the objections to one sentence in [39] and two sentences in [40] of the further report be upheld.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    On 21 June 2022, I held that two expert reports filed on behalf of the applicants by Stephen Paul were inadmissible: see Kaplan v State of Victoria (No 3) [2022] FCA 728.

2    In another example of a party taking advantage of the fact that this proceeding is now being conducted in tranches due to the trial wholly exceeding the parties’ estimates, during the break between that decision and the next tranche of evidence in the trial, the applicants instructed Mr Paul to prepare a further report. That further report is dated 22 July 2022 and was filed on the same date. The applicants were granted leave to file the further report, on the basis that the respondents would be given an opportunity to consider whether they objected to the applicants being granted leave to rely upon the report, or alternatively whether the respondents objected to the whole report, or only parts of it.

3    On 28 July 2022, senior counsel for the respondents informed the Court that the respondents did not object to the further report being tendered, and made no objection to the whole of the report. The respondents did, however, give notice of some specific objections. This decision concerns those objections, although it is also appropriate that there be an order granting leave to the applicants to rely on the further report.

Objection 1

4    The respondents object to [5]-[9] of the further report on the basis of relevance. They submit the applicants do not plead in their statement of claim or concise statement that any failure by the respondents (or some of them) to conduct restorative justice sessions in relation to the treatment experienced by the applicants (or some of it) was either contrary to s 9 and/or s 18 of the Racial Discrimination Act 1975 (Cth) or negligent. As such, the evidence is not relevant to an issue in dispute. The applicants submit some witnesses have been questioned on the topic without objection (Richard Minack, Lee Angelidis and Nathan Hutchins) and that some of the policies the respondents rely upon refer to restorative justice. They contend the issue is more relevant to their allegations of negligence and submit the statement of claim and concise statement both refer to failures to take action, and failure to stop or modify the behaviour of the offending pupils, so that, at best, the respondents’ complaint is about the absence of a particular relying on restorative justice.

My conclusion

5    There is no challenge to Mr Paul’s expertise, nor to these matters as being within his area of expertise. I proceed on those assumptions. Mr Paul’s evidence in [5]-[9] covers several distinct matters:

(a)    he describes and explains the concept of “restorative justice” in a high school setting, concerning student behaviour management (at [5]);

(b)    he explains his own use and experience of it when he was a principal (at [6] and [7]);

(c)    he expresses some opinions about it being “standard industry practice in most Australian schools” between 2013-2020, and refers to some Victorian Department of Education publications and statements about it (at [8]);

(d)    he expresses some opinions about its effectiveness (at [9]); and

(e)    he expresses the opinion that (at [8]):

Against this context I find it very concerning that a restorative justice process was employed at BSC [Brighton Secondary College] only once in relation to all five Applicants and specifically only in relation to Joel Kaplan (7.1 below) during the Period in question. In terms of my personal professional experience, I was using restorative justice procedures at the time of my retirement at the end of 2008 and had been for a number of years on a regular basis.

6    There is no express allegation in the applicants’ pleadings about a failure by senior management and teachers at Brighton Secondary College to employ a restorative justice process as part of the behaviour management methods applied to those students who engaged in bullying, alleged to be antisemitic bullying, of one or more of the applicants. If it is to be considered as raised on the pleadings, that can only be because as a management technique it is seen as a sub-set of actions that might be taken, or employed, at a state secondary school to deal with undesirable or inappropriate behaviour between students. Relevant aspects of the applicants’ statement of claim and concise statement are:

(a)    as to s 9 of the RDA, statement of claim at [366] – an allegation of a failure by Mr Minack to “take action” in response to antisemitic behaviour;

(b)    as to s 9 of the RDA, statement of claim at [367]-[368] – an allegation that the “same failures apply in relation to all staff to whom reports/notification” were made;

(c)    as to negligence and alleged breach of a duty of care, statement of claim at [380] (in relation to Liam Arnold-Levy), under the particulars “Failure to Protect and Discipline” and also “Failure to Educate”, especially an alleged failure to “to take adequate steps to stop or modify the behaviour of offending pupils”, and an alleged failure to “educate sufficiently, so as to avoid anti-Semitic bullying occurring”;

(d)    as to negligence and an alleged breach of a duty of care, statement of claim at [385] (in relation to Joel Kaplan), under the particulars “Failure to Educate”, an alleged failure to “educate students sufficiently so as to avoid escalating anti-Semitic verbal and physical assaults”;

(e)    as to negligence and an alleged breach of a duty of care, statement of claim at [390] (in relation to Matt Kaplan), under the particulars “Failure to Protect and Discipline”, an alleged failure to “ensure that appropriate steps were taken to prevent normalised anti-Semitic insults and threats at Brighton” and an alleged failure to “take adequate steps to stop or modify the behaviour of offending pupils. Then under the heading “Education”, an alleged failure to “educate students sufficiently so as to avoid escalating anti-Semitic verbal and physical assaults”;

(f)    as to negligence and an alleged breach of a duty of care, statement of claim at [395] (in relation to Guy Cohen), under the particulars “Failure to Protect and Discipline”, an alleged failure to “ensure that appropriate steps were taken to prevent normalised anti-Semitic verbal and physical abuse at Brighton” and an alleged failure to “appropriately discipline perpetrators of the daily racist abuse to stamp it out or to modify their behaviour to prevent continuation”. Then under the heading “Failure to Educate”, an alleged failure to “educate students sufficiently so as to avoid escalating anti-Semitic verbal and physical assaults”;

(g)    as to negligence and an alleged breach of a duty of care, statement of claim at [400] (in relation to Zack Snelling), under the particulars “Failure to Protect”, an alleged failure to “take appropriate steps to discipline bullies who ultimately criminally assaulted and robbed Zack in a park in the middle of the night”, and an alleged failure to “ensure that appropriate steps were taken to prevent normalised anti-Semitic verbal and physical abuse at Brighton”. Then under the heading “Failure to Educate”, an alleged failure to “educate students sufficiently, so as to avoid anti-Semitic bullying occurring on its premises”. There are also various particulars under the heading “Failure to Discipline” which could objectively encompass restorative justice approaches to student behaviour management; and

(h)    in the concise statement:

(i)    “The School had a failed system of discipline and education with respect to Jewish (and/or Israeli) issues and concerns, resulting in a normalised culture of anti-Semitism” (at [2]);

(ii)    the failure to take action on incidents, alleged to be a “result of anti-Semitic attitudes and apathy that flowed from the top down, which were normalised across the period”, and alleged to contravene s 9 of the RDA (at [6]);

(iii)    “The School breached its duty of care when failing to devise, implement and maintain an adequate anti-bullying program; failing to act upon the Applicants’ complaints of bullying/racism etc; failing adequately to investigate and prevent the bullying of which the Applicants complained, by supervising, disciplining and counselling or educating the perpetrators” (at [14]); and

(iv)    “A plethora of steps concerning discipline, reporting, education, training etc, could have, and should have, been taken to avoid the foreseeable risk of harm of which the School was aware” (at [17]).

7    On balance, and for the reasons that follow, I consider the employment of restorative justice as one of the available techniques or processes to manage student-on-student behaviour at BSC is a matter included in the applicants’ case as pleaded when viewed objectively, and about which the respondents have had sufficient notice during the course of the trial to this point. Therefore, the evidence is relevant and the objection should be overruled.

8    It is true (as the respondents contend) that the allegations of ‘failure’ to discipline, educate or protect suffer from a level of generality that is less than desirable. However, it is the respondents who have put forward all of the applicable policies and procedures relevant to student behaviour management at BSC, and who, I find, are more likely than not to be aware of the concept of restorative justice as a tool in behaviour management at secondary schools. I consider it is unlikely that the respondents could not reasonably have appreciated that such a topic was encompassed in the allegations about “failures” to educate and discipline, restorative justice being a process which could operate towards both objectives. That is especially so since Mr Butt opened for the applicants on this very issue: see transcript at p 20, l 38 – p 21, l 1.

9    In my opinion, restorative justice as a behaviour management tool for incidents between secondary school students is an obvious inclusion in the topic of failures to take appropriate action to stop or modify the behaviour of the students the applicants allege were engaged in antisemitic bullying against them. Mediation is also not expressly pleaded but is plainly another behaviour management tool that was available. Similarly, the “follow up” failures with respect to the applicants, about which many respondent witnesses have been questioned (notably in relation to Zack Snelling) are not pleaded in any real detail, but are an obvious inclusion in the topic of failures to take appropriate action. So too, the alleged failures to have any, or any sufficient, campaign of education about antisemitism and its effects at BSC. I make those findings without of course expressing any view about the persuasiveness or correctness of the applicants’ allegations; but rather to make the point that if one is considering a question such as ‘what steps might a Victorian state school in the position of BSC have been reasonably expected to take’, restorative justice processes are a matter which is obviously in reasonable contemplation.

10    It is also correct that Mr Minack was cross-examined on the proposition that a restorative justice process was used once in relation to Joel Kaplan and not otherwise used in relation to any of the applicants and their allegations: see transcript at p 1572, ll 8-10. As a factual proposition that does not appear to be disputed. I also accept that Ms Angelidis and Mr Hutchins were asked about it, along similar lines. None of these witnesses, when asked about it, gave any evidence that they considered but rejected using such a process. Nor did they give any evidence that they were aware that others in positions of responsibility with respect to student behaviour had suggested using it. Nor were Mr Minack and Mr Hutchins re-examined on this matter. Ms Angelidis was re-examined about her understanding of the concept, but not whether it was considered/rejected (or even used) as a possible approach for any of the applicants: see transcript at p 1712, ll 1-16.

11    In my opinion, the use of restorative justice as a behaviour management technique in Victorian secondary schools has been sufficiently raised in the existing evidence, documentary and oral, to this point, as well as in the opening on behalf of the applicants, for it to be a matter the respondents objectively should have understood to be included in the failures to take appropriate action in response to the alleged antisemitic conduct of other students. It is a matter apparently contemplated by the State’s Bullying Prevention and Response Policy, at least insofar as the document refers to the “provision of mediation”. In [3A]-[3B] of their defence, the respondents rely on this policy.

12    For completeness, I might add that while the applicants emphasised this topic may be more relevant to their negligence allegations, it seems to me it is arguably relevant also to the alleged contraventions of s 9 of the RDA. Indeed, the failures to take action are pleaded in respect of both causes of action, as I have outlined above.

13    Having found the evidence is relevant, there may be other consequences for the parties if it is adduced. The respondents might seek to explore the topic of restorative justice in more detail with their remaining witnesses. That is an opportunity available to them because this trial is now occurring in tranches. The applicants have taken advantage of the gaps between the tranches to ask Mr Paul to prepare a further report when his earlier reports were held to be inadmissible. If the applicants wish to press reliance on [5]-[9] of Mr Paul’s further report, given the sequence of evidence in this proceeding, then the risk that the respondents might seek to answer it with some fresh evidence of their own from their remaining witnesses may be a consequence which the applicants will have to accept.

Objection 2

14    Objection 2 relates to [20] of the further report, where Mr Paul gives an opinion about one of the BSC students alleged to have been a key participant in antisemitic bullying of a number of the applicants, especially Zack Snelling. Mr Paul expresses the following opinion:

Without wanting to demonise this young man but to particularise, he is clearly, in terms of my experience, a recidivist offender and to me presents a clear danger to other students and, in any reasonable school would have been expelled. As I indicated in paragraph 20 above, his continued presence at the school would, in my opinion, undoubtedly embolden himself and other such students.

15    The reference to “paragraph 20” in this passage appears to be an error. Nothing turns on this. The respondents submit this passage is speculation by Mr Paul, outside his area of expertise as a school principal and expresses a conclusion without any identified basis. The respondents also submit parts of the passage purport to provide an opinion on the student’s state of mind.

16    The applicants submit the opinion is within Mr Paul’s expertise as a principal and is based on the assumptions given to him about Zack Snelling.

My conclusion

17    The respondents’ objection should be upheld in part. The first sentence is admissible, but the second sentence is not. Again, there is no challenge to Mr Paul’s experience, and area of expertise as a school principal. Mr Paul is able to express an opinion about what would be reasonable conduct for a school, and especially for its principal as the person responsible for expulsions, in respect of a student with the background and circumstances of this student. The second sentence is speculation, and not admissible for the reasons I give at [23], below.

Objection 3

18    The respondents object to the following opinion expressed by Mr Paul (at [39] of the further report) about Mr Minack, in relation to the 2019 speech:

He also appears to be completely insensitive to the offence caused to Jewish students by the phrase “subhuman and evil” and “death squads” and to be unconcerned of the sensitivities associated with the use of the word “Holocaust”.

19    I have assumed the respondents object to the whole sentence, although the terms of their written objection might suggest otherwise. The respondents submit Mr Paul cannot give evidence about Mr Minack’s “sensitivity” or otherwise. That is outside his area of expertise and is no more than an opinion on a matter which may be for the Court to decide – I infer, as part of the s 9 RDA arguments.

My conclusion

20    I accept the respondents’ submission. While it is true as the applicants submit that Mr Paul has experience in giving assembly speeches himself, by reason of his time as a principal at several schools, that experience does not make him an arbiter, and certainly not an expert arbiter, about what is, or is not, sensitive and appropriate in a given situation. If such a matter is relevant at all (a question for argument at the conclusion of the trial), it is relevant to the objective task required by s 9 of the RDA. That is the Court’s task.

Objection 4

21    In a similar vein to objection 3, the respondents object to the following passage from [40] of Mr Paul’s further report, another opinion expressed in relation to Mr Minack’s 2019 speech:

Young adolescent males in such settings are, in my experience, rather like pets who, when their owners speak to them, hear their name and either “walkies” or “dindins” with the rest essentially gibberish. In this way, many of these young junior secondary students would only have heard “Holocaust” (twice); “father a good man”; “Christchurch”; “sub-human and evil” (three times), “death squads” and “Nigger” (three times) in my opinion.

22    In oral argument, counsel for the respondents made it clear the objection was to two sentences and not just one.

My conclusion

23    I uphold the objection. Relevantly to the evidence and the objection, it can be accepted that any high school principal will, by dint of performance of that role, and previous teaching roles before it, have some experience of the reactions of high school students to what is said in a large group gathering at a school, such as an assembly. That experience might lead to such a person developing a sense of how they consider students might react. Of its nature, that sense is nothing more than speculation on the part of a principal. The reactions they see in students may be driven by any number of factors, some of which might not be apparent to the principal at the time. Reactions will also be as variable as are the personalities and maturity of the students in a room at any given time. These sorts of generalisations, involving as they do a high level of stereotyping, are of no assistance to the Court and are not sourced from any objectively discernible expertise. In context, this is nothing more than a somewhat pejorative off the cuff remark from Mr Paul, and it is not admissible.

Conclusion

24    The applicants will be granted leave to tender and rely upon Mr Paul’s further report. The respondents’ objections are upheld in part and the copy of Mr Paul’s report which will be placed on the Court’s electronic file will be amended to reflect these reasons.

Associate:

Dated:    1 August 2022

SCHEDULE OF PARTIES