Federal Court of Australia

Kaplan v State of Victoria (No 8) [2023] FCA 1092

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

Five applicants, Joel Kaplan, Matt Kaplan, Guy Cohen, Zack Snelling and Liam Arnold-Levy, have brought this proceeding against the State of Victoria, the principal of Brighton Secondary College, Mr Richard Minack, and two BSC teachers, Mr Paul Varney and Ms Demi Flessa. The applicants rely on three causes of action: contraventions of s 9(1) of the Racial Discrimination Act 1975 (Cth), contraventions of s 18C of the RDA, and negligence.

The factual basis for all three causes of action is broadly the same, although there are also a number of specific allegations against Mr Varney, Ms Flessa and a number of other BSC teachers. The applicants’ allegations span the period of 2013 to 2020, depending on when they attended BSC. Each applicant left BSC prematurely, and the Court has accepted that four out of five of them left because of the antisemitism from other students they experienced at BSC and how unsafe and unprotected by Mr Minack and the BSC staff they felt. The fourth-named applicant, Guy, left to move overseas.

In summary terms, the applicants allege that during their respective times at BSC, they were subjected to antisemitic bullying and harassment by groups of BSC students, and some individual BSC students, and that they complained about the bullying and harassment. The applicants allege that other Jewish students at BSC experienced some of the same treatment. The applicants also allege that Mr Minack contravened the racial vilification provisions of the RDA (s 18C) in respect of at least one (and allegedly more than one) speech he gave to a full school assembly at BSC, where the applicants allege he made remarks that offended, insulted, humiliated or intimidated Jewish students at the assembly and were offensive more generally to Jewish people.

The applicants allege that, unlike other vulnerable minority student groups, no or no adequate steps were taken by Mr Minack, and through him the rest of the teaching and other staff at BSC, to address how these other students were treating the applicants, or to protect Jewish students. They also allege that, unlike other vulnerable minority student groups, Jewish students (including the applicants) had to endure unreasonably and extraordinarily high levels of graffiti that was highly offensive and hurtful to them, and which made them fearful for their safety at school. This graffiti consisted largely of swastika graffiti, and they allege it was present in the classrooms and around the grounds of BSC, as well as through students drawing swastikas on school books and on themselves, and making swastika shapes. They allege there were no proactive and systemic measures taken by Mr Minack, and through him the rest of the teaching and other staff at BSC, to discourage this kind of graffiti, to educate students about its particular impacts on Jewish students and to facilitate behaviour change at BSC in the way behaviour change was facilitated for other vulnerable minority groups.

The applicants also made a series of specific factual allegations against Mr Varney and Ms Flessa about remarks they made during various classes concerning Israel and Palestine and concerning Israelis and Palestinians, and about comments in Hebrew Mr Varney is alleged to have said to Guy.

The respondents contested liability on all three causes of action.

The Court has determined that the applicants’ allegations should be upheld in part. The Court has generally accepted the narrative from the applicants, their family members and the 17 former and current BSC student witnesses who gave evidence about the unusually high levels of swastika graffiti, and the frequent complaints they made about swastikas and the antisemitic bullying and harassment. The Court has accepted the applicants’ case that there were failures by Mr Minack to address in any systemic and proactive way the antisemitic bullying and harassment, using recognised and established approaches available in Australian secondary schools and indeed used at BSC for other vulnerable minorities.

The main allegations which the Court has upheld relate to Mr Minack’s contravention of s 9 of the RDA by failing to take appropriate and reasonable steps to discourage and modify the antisemitic student bullying and harassment behaviour, and to discourage swastika graffiti, including by imposing appropriate disciplinary consequences but also by more systemic approaches such as school-wide campaigns. The Court has found that at a leadership and systemic level, Mr Minack took a different, and less favourable, approach to antisemitic bullying and harassment of Jewish students than he took, or would have taken, to the bullying and harassment of other vulnerable minority student groups at BSC. Through his own conduct as principal, this differential approach was also adopted by BSC staff, and there was – for example – an inexplicable and unusual tolerance for antisemitic graffiti and a preparedness to ignore, downplay and take less seriously the complaints made by Jewish students and their families. There was also a disinclination to adopt any systemic, school-wide steps to address antisemitic student behaviour, despite this having been done, appropriately, to protect LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in that way or who were exploring their identity.

This conduct involved a distinction in the way the applicants were treated by Mr Minack and, through his failures in leadership, the teachers and staff at BSC, which in turn impaired the applicants’ human rights to security of person and protection, to education, and to preservation of their Jewish identity.

Insofar as these allegations under the RDA were also made in negligence, the Court has upheld the negligence claims made by Liam, Joel, Matt and Zack. No negligence claim was pressed on behalf of Guy.

The Court has upheld one specific claim under s 9 of the RDA by Guy against Mr Varney, relating to singling Guy out and greeting him in Hebrew when Guy and his mother had made it clear this conduct was unwelcome.

The Court has otherwise rejected the specific claims made against Mr Varney, and has rejected all the specific claims made against Ms Flessa. It has also rejected all of the claims made by the applicants about specific incidents where they allege inadequate or partisan disciplinary consequences were imposed for various interactions between one or more of the applicants and other BSC students that were said to involve antisemitic harassment and bullying. The Court has found the applicants have not proven that these specific disciplinary decisions about those specific interactions were made other than on a case-by-case basis within the scope of existing policies of BSC for dealing with student on student interactions, and the applicants have not proven there was any racially discriminatory element to those specific disciplinary decisions.

The applicants claimed a variety of relief. The State generally accepted it would be vicariously liable for the alleged conduct if proven. Therefore, in relation to the allegations the Court has found proven, damages and compensation orders are made against the State. The Court has ordered the State pay, in total:

(a)    the sum of $63,780 to Joel;

(b)    the sum of $60,000 to Matt;

(c)    the sum of $55,000 to Guy;

(d)    the sum of $244,968.31 to Zack; and

(e)    the sum of $11,532.43 to Liam.

Interest may be payable on some of those amounts. Some of the damages in negligence claimed by the applicants were not available because of the provisions of the Wrongs Act 1958 (Vic), and the limits imposed on recovery of damages for physical and psychiatric injury in negligence. Through the operation of s 79 of the Judiciary Act 1903 (Cth), those limits apply to the applicants’ negligence claims.

Further, Liam’s claims under the RDA, although of the same nature as those made by Joel, Matt, Guy and Zack, related to a time before Mr Minack was principal of BSC. The Court has found the applicants did not allege and prove any claims under the RDA against the then principal of the school, Ms Podbury, in the same way they alleged and proved their claims against Mr Minack. Therefore, Liam’s claims under the RDA cannot succeed in the same way that the claims of the other four applicants have succeeded. The Court recognises the perceived unfairness in this outcome, and has invited the State to consider making an ex gratia payment to Liam, commensurate with what the Court has found was the damage he suffered, and commensurate with the compensation awarded to the other applicants.

The Court has also granted declaratory relief relating to contraventions of the RDA, whereby the Court describes the contraventions of the RDA it has found proven.

The Court has agreed with the applicants that there should be an apology, or apologies, but has agreed with the respondents that the proper respondent to give that apology, or apologies, is the State. In its orders, the Court has prescribed some steps to be taken between the parties to negotiate a form of apology that is compatible with the Court’s reasons. If the parties cannot agree on a form of apology, or apologies, one possible outcome is that the Court will not order any apology to be given.

The Court has not agreed with any of the other relief sought by the applicants.

MORTIMER CJ

14 September 2023

MELBOURNE