Federal Court of Australia

Kaplan v State of Victoria (No 5) [2022] FCA 909

ORDERS

THE COURT ORDERS THAT:

1.    The application to call Leigh Sanders as a witness in this proceeding on behalf of the respondents is refused.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The respondents have sought leave to call a further witness, Leigh Sanders, in the proceeding. The respondents have so far called 12 witnesses (including the individual respondents) with 16 lay witnesses and one expert witness yet to be called. The next tranche of the hearing is not scheduled until mid-November 2022, due to various commitments of counsel and the Court.

2    The respondents submit Mr Sanders’ evidence is responsive to the evidence of Jasmine Karro, a present student of Brighton Secondary College who gave evidence on behalf of the applicants on 16 June 2022. Relevantly to the respondents’ present application, the respondents nominate three pieces of evidence given by Ms Karro. The first two were said by the respondents to be that she:

(a)    saw “probably over 200” swastikas during her time at BSC; and

(b)    saw them carved into tables, drawn on walls and tables, in the bathroom areas of the toilets and “graffitied” in a lot of public spaces at the school.

3    I note that these aspects of Ms Karro’s evidence about swastikas was not dissimilar to the evidence given by many of the other student witnesses, and by the applicants.

4    However, Ms Karro gave some additional evidence not given, as I understand it, by any of the applicants or the other student witnesses. Certainly on this application the respondents did not suggest that any other student witnesses had given this evidence. The applicants did point to somewhat similar evidence having been given, though in much more general terms, at transcript p 426, ll 16-19 (Notis Korkoneas) and p 587, ll 31-34 (Max Joho). Ms Karro stated that over the 2020/2021 summer school holidays the school was repainted, including the classrooms, and that when she returned to school there were fresh, new tables and chairs, and the “graffitied” tables and chairs had been removed. She stated that “things that had anti-Jew things on them were taken out of the school”.

5    Ms Karro was not cross-examined on this evidence. All that was put to her (after some objections were resolved) was the following (transcript at p 917, ll 5-8):

There will be evidence in this proceeding that, when swastika graffiti was reported, that the school took action to remove the swastikas. You’re not in a position to contradict that, are you?---No.

6    While the respondents identified Ms Karro’s oral evidence as the explanation for this application, for the reasons set out below I do not accept that explanation.

7    The respondents read and relied upon an affidavit of Marian Morton, a solicitor for the respondents, dated 29 July 2022 in support of the application. Ms Morton deposed that she conferred with Mr Sanders on 17 June 2022 with a representative of the State and counsel. She does not depose to how or why this came about, or how Mr Sanders had been identified. As I explain below, his role in relation to the cleaning of graffiti at the school was well known to the respondents before this time.

8    Ms Morton deposes that another solicitor for the respondents, Caitlin Ible, conferred with Mr Sanders on 22 June, with counsel, and after that conferral an outline of evidence was prepared.

9    She then deposes that the outline was served on the applicants’ solicitors on 22 July 2022. The application to call Mr Sanders was foreshadowed by senior counsel for the respondents in Court on 28 July 2022.

10    First, it is appropriate formally to note that the respondents did not serve Mr Sanders’ outline of evidence promptly after they had conferred with him. Instead, a month or so elapsed. That delay could only occur because this trial is now being heard in tranches, it having run significantly over the parties’ estimates. There was a break between the June hearings and the hearings in the last week of July. Even then, the respondents did not file Ms Morton’s affidavit with Mr Sanders’ outline annexed until the last day of the July tranche. It was not until that point that the applicants could reasonably be on notice, with certainty, that the respondents sought to call Mr Sanders.

11    I have stated in Court that the respondents’ late notice and service of material they intend to rely upon is unfair to the applicants, and it is unsatisfactory behaviour on the part of the parties and their legal representatives, especially given the State of Victoria is the first respondent and its model litigant obligations require particular attention to the fairness with which it conducts itself. Whether as part of a continuing obligation of discovery or otherwise, new material should be very promptly, if not immediately, disclosed to the opposing party, and any intention to rely on it also promptly, if not immediately, disclosed, with an adequate explanation of the reason for its late provision and the purpose of its tender. This is a minimum level of discharge of the professional responsibilities of the legal representatives concerned, and of the obligations of parties in a proceeding such as this, especially since this is a proceeding being conducted by way of oral evidence. It is inappropriate for a party to take advantage of gaps between tranches of the trial in this proceeding to go searching for new evidence. The Court has made extensive trial programming orders in this proceeding, and the parties have prepared their cases accordingly. As a general proposition, they should be held to the forensic decisions made in that trial preparation, including as to which witnesses to call and which documents to rely upon, subject to exceptional circumstances where fairness requires a dispensation to be given.

12    This is not such a case.

13    Mr Sanders’ outline of evidence contains 14 paragraphs. When asked during argument which of these are responsive to Ms Karro’s evidence, senior counsel identified only [6], which states:

Mr Sanders will give evidence that he was involved in a number of larger painting projects, including painting the canteen[,] a portion of the P Block (rooms 5, 7 and 9[)] in about 2018 and the North wing in about 2019. He does not recall seeing any swastika graffiti on the walls during these painting projects.

14    That proposed subject matter barely touches Ms Karro’s evidence about what happened over the summer in 2019/2020. The remainder of the outline deals with other topics, notably evidence about Mr Sanders’ role as a cleaner, then Assistant Facilities Manager and finally Facilities Manager at BSC. It is proposed he give evidence about the role he had in cleaning graffiti, and in undertaking tasks such as cleaning toilets, desktops, walls and the like. Paragraph [13] of his outline then states:

Mr Sanders will say that when cleaning desktops, if there was graffiti, he would remove it. He says that the cleaners were provided sponges, soap and disinfectant to clean the desktops, and that he was instructed as part of his role to remove graffiti. Mr Sanders estimates that he saw less than five swastikas over the course of his time as a cleaner. He says that he would not always examine the graffiti that he was cleaning, however, he would make sure that it was removed. Mr Sanders says that to the best of his recollection the majority of graffiti was either 'tags' or drawings of genitals.

15    I do not accept that Mr Sanders’ evidence is in any way responsive to Ms Karro’s oral evidence described at [4] above. It does not even purport to deal with what, if anything, occurred over the summer of 2020/2021.

16    The contents of Mr Sanders’ witness outline make it plain that the respondents seek to adduce general evidence about the state of facilities at BSC during the relevant period, including evidence intended to contradict the applicants’ student evidence about the numbers of swastikas present around the school at any given time. As the applicants submitted in opposing this application, “the focus of the Outline is not Ms Karro’s repainting evidence”. It is clear that the respondents have wider forensic objectives in calling Mr Sanders. It would be inappropriate for the Court to express any view about what those might be.

17    Mr Sanders’ outline demonstrates he has been working at BSC since 2009. There is no evidence about why he was not initially listed as a witness and an outline filed in accordance with the Courts’ orders.

18    I consider it would be unfair to the applicants to permit the respondents to call Mr Sanders. The applicants have closed their lay oral evidence case. They adduced evidence based on the respondents’ outlines as they had been filed. They have cross-examined 12 of the respondents’ witnesses on the basis of the oral evidence as it has stood, and on the basis of what, if anything, in the applicants’ and students’ oral evidence has been challenged by the respondents. I have no doubt many forensic decisions have been made by the applicants over the course of the last six weeks of oral evidence, on the basis of the respondents’ witness case as presently disclosed. The respondents should be held to the case they have disclosed and upon which the applicants will have relied.

19    It is now far too late for the respondents to seek to supplement and add to their oral evidence case, in a material way and with a new witness who has always been available to them. None of Mr Sanders’ evidence will be able to be put to the student witnesses, or to the applicants. That is a further unfairness.

20    The respondents have always been able to answer the evidence of Ms Karro described at [4] above, on what is on any view a topic of very small compass in the context of this proceeding. Indeed, the respondents elected to address this topic expressly with Mr Minack. In chief, Mr Minack was asked about maintenance activities at the school: see transcript from p 1156, l 15. He gave specific evidence about what instructions were given to the cleaners about graffiti removal. He gave specific evidence about how staff (teachers, and the “maintenance teams”) were instructed to inspect classrooms. At transcript p 1157, ll 8-10, Mr Minack gave the following evidence:

So Sal had an assistant as well, Lee [Leigh] Saunders [Sanders]. They would, certainly during periods of – of school holidays or doing work, they would inspect the school and address the graffiti as they – as they found it.

21    That evidence was given on 23 June 2022. That is six days after Ms Morton had conferred with Mr Sanders. And yet, on that day, and after that evidence had been given, the respondents said nothing to the applicants, or the Court, about calling Mr Sanders.

22    Mr Minack was then asked specific questions about what kind of graffiti was reported to him as having been found around the school, and he answered those questions. Later, at transcript p 1160, ll 32-36, Mr Minack was again asked about graffiti around the school, this time by reference to the aftermath of his 2019 speech.

23    Senior counsel then returned to what he described as the topic of “maintenance more broadly at the school”: transcript at p 1161, l 29. Mr Minack was asked, specifically (transcript at p 1161, ll 32-33):

What’s the general position or process at the school in terms of painting and furniture replacement from time to time?

24    This is precisely the topic about which it is now proposed Mr Sanders gives fresh evidence.

25    Mr Minack answered this question, and further questions, about painting and repainting of the school over several pages of transcript, again mentioning Mr Sanders expressly at transcript p 1162, l 29 and by implication at transcript p 1163, l 22. As far as I can ascertain, Ms Karro’s evidence was not put directly to Mr Minack. However, there was an opportunity to do so. How counsel decide to deal with the evidence given by an opposing party is a forensic decision. In this case, Mr Minack was asked to, and gave, a significant amount of evidence about maintenance and cleaning activities around the school. The applicants then cross-examined Mr Minack on the basis of that evidence, and on the basis of the remainder of the respondents’ evidence case as disclosed by the outlines. It would be wholly unfair to allow the respondents to now introduce a material addition to that evidence.

Conclusion

26    The respondents’ application is refused.

Associate:

Dated:    4 August 2022

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