Federal Court of Australia

Kaplan v State of Victoria (No 9) [2023] FCA 1307

ORDERS

THE COURT NOTES THAT:

A.    The first, second, fourth and fifth applicants’ damages awards are subject to the provisions of the Health and Other Services (Compensation) Act 1995 (Cth). The first respondent is therefore precluded from paying the damages awards to the applicants pursuant to s 32 of the Act until it is provided with a valid Notice of Charge by Services Australia.

THE COURT ORDERS, BY CONSENT, THAT:

1.    Pursuant to s 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth):

(a)    the first respondent pay interest on the sum of $63,780 payable to the first applicant to the date of judgment, 14 September 2023, in the amount of $10,485.44;

(b)    the first respondent pay interest on the sum of $60,000 payable to the second applicant to the date of judgment, 14 September 2023, in the amount of $9,592.19;

(c)    the first respondent pay interest on the sum of $55,000 payable to the third applicant to the date of judgment, 14 September 2023, in the amount of $9,820.71;

(d)    the first respondent pay interest on the sum of $244,968.31 payable to the fourth applicant to the date of judgment, 14 September 2023, in the amount of $39,155.71; and

(e)    the first respondent pay interest on the sum of $11,532.43 payable to the fifth applicant to the date of judgment, 14 September 2023, in the amount of $4,714.31.

2.    The first respondent pay the first, second, fourth and fifth applicants their interest awards and the third applicant’s judgment award, including interest, on or before 14 November 2023.

3.    The first respondent pay the damages award to the first, second, fourth and fifth applicants (less any amount repayable to Services Australia) within 21 days of receipt of a valid Notice of Charge issued by Services Australia.

4.    The first respondent pay the applicants’ expenses associated with the attendance of their expert Stephen Paul at trial in the sum of $1,018.93 on or before 14 November 2023.

5.    The first respondent pay the applicants’ expenses associated with the attendance of their expert Professor Suzanne Rutland at trial in the sum of $2,613.32 on or before 14 November 2023.

6.    The first respondent pay the applicants’ expenses to Dr Amanda Scott for the reasonable costs of her attending to give evidence at trial as conduct money pursuant to a subpoena in the sum of $550.00 on or before 14 November 2023.

7.    The first respondent pay the applicants’ costs in the sum of $130,000 on or before 14 November 2023.

8.    By 30 October 2023, the first respondent issue a written apology in the form annexed to these orders as Annexure A to the first, third and fourth applicants, to be sent to their solicitors.

9.    By 28 November 2023, a Deputy Secretary of the Department of Education issue an oral in person apology on behalf of the first respondent to the first, fourth and fifth applicants at the Caulfield Hebrew Congregation, the words of which are at the discretion of the first respondent apart from that the apology must include the words ‘apologise’ and ‘sorry’.

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

Annexure A – Written apology of the first respondent

REASONS FOR JUDGMENT

MORTIMER CJ:

1    On 14 September 2023, I delivered reasons and accompanying declarations and orders in this proceeding: see Kaplan v State of Victoria (No 8) [2023] FCA 1092 (Kaplan (No 8)). As I explained at [44] of Kaplan (No 8), I use the applicants’ first names throughout these reasons, which is broadly consistent with how they were content to be identified during the trial. The declarations and orders in Kaplan (No 8) relevantly included:

(a)    declarations that:

(i)    Richard Minack (the first respondent) had engaged in unlawful discrimination contrary to the Racial Discrimination Act 1975 (Cth) with respect to Joel, Matt, Guy and Zack;

(ii)    Paul Varney (the third respondent) had engaged in unlawful discrimination contrary to the RDA with respect to Guy;

(iii)    pursuant to RDA s 18A, the RDA applies to the State of Victoria (the first respondent) as if the State had engaged in the unlawful discrimination by Mr Minack and Mr Varney; and

(b)    orders that:

(i)    the State pay compensation to Joel, Matt, Guy and Zack;

(ii)    the State pay damages to Liam;

(iii)    the parties negotiate in good faith as to an agreed form of apology or apologies to be given by the State to each of the applicants, in the absence of which the proceeding would be listed for case management for the Court to consider whether it should prescribe a form of apology or relieve the State of any obligation to deliver an apology to one or more of the applicants; and

(iv)    the parties file any proposed further orders, or variations to orders already made in the proceeding, including any orders in relation to interest, accompanied if necessary by short written submissions.

2    On Friday 13 October 2023, the parties provided my Chambers with correspondence that included proposed orders with respect to the payment of interest on the sums payable by the State to each of the applicants, and proposed orders that the State pay the applicants’ expenses incurred through the attendance at trial of the applicants’ expert witnesses Stephen Paul, Professor Suzanne Rutland and Dr Amanda Scott.

3    The proposed orders also included a proposed order that the State pay the relevant compensation to Joel, Matt, Zack and Liam “within 21 days of receipt of a valid Notice of Charge issued by Services Australia”, and a note titled “Other Matters” as follows:

The first, second, fourth and fifth applicants[’] damages awards are subject to the provisions of the Health and [Other] Services (Compensation) Act 1995 (Cth). The first respondent is therefore precluded from paying the damages awards to the applicants pursuant to s32 of the Act until it is provided with a valid Notice of Charge by Services Australia.

4    No formal submissions were provided by the parties in support of the orders, including the order relating to the Notice of Charge. The parties’ correspondence also indicated that the applicants sought a variation to the declaration that had been made as to Mr Varney’s unlawful conduct under the RDA with respect to Guy in Kaplan (No 8), and that the parties were in continuing discussions as to the content of any apology or apologies to be given by the State to the applicants.

5    On Monday 16 October 2023, my Chambers responded to the parties, relevantly stating in summary that:

(a)    the parties should provide joint submissions as to the legal basis of the note regarding the Notice of Charge;

(b)    no orders would be made until the apology aspect of the proposed relief had been finalised;

(c)    the Court had no difficulty with the proposed orders relating to various expert witness expenses, on the understanding those orders were proposed by consent; and

(d)    the Court did not consider the applicants’ proposed variation to the declaration appropriate, as the Court’s reasons in Kaplan (No 8) speak for themselves and the orders as framed in those reasons were appropriate.

6    On Wednesday 18 October 2023, the parties indicated by correspondence that:

1.    The parties have agreed on a written form of apology to be given by the Secretary of the Department of Education to the following 3 applicants: Joel Kaplan, Zack Snelling and Guy Cohen.

2.    There is no agreement with Matthew Kaplan and Liam Arnold Levy (now formally Liam Levy) as to any written apology. Those 2 applicants now, given the form which has been proposed by the State and the difficulty of the process with it, no longer want a written apology from the State of Victoria.

3.    We suggest that the agreed written apology to the 3 named applicants in (1) above should be served on Cornwalls within a short time after the final orders are made in this matter (e.g. 5 days) or earlier.

4.    In addition, there is agreement between the parties to an in-person apology to be delivered by the Deputy-Secretary of the Department of Education which is to take place in the coming weeks at an agreed location. The form of that apology is a matter for the first Respondent which has not been discussed. This apology will be given to the following applicants: Joel Kaplan, Zack Snelling and Liam Levy.

5.    Guy Cohen will not be in the jurisdiction. Matthew Kaplan, for the same reasons in (2) above, no longer wants an in person apology from the State.

7    The Court invited the parties to prepare and propose orders reflecting the position outlined in this correspondence. On Thursday 26 October 2023 the parties provided the proposed consent orders that are made by the Court today. They also provided short joint submissions in support of those proposed orders. The submissions appropriately focused on the proposed note with respect to the Notice of Charge, and the operation of the Health and Other Services (Compensation) Act 1995 (Cth).

8    The proposed orders relating to the payments of expenses for the applicants’ expert witnesses, and the payment of interest on the damages sums, are not controversial and no more need be said about them. The terms of the apologies were matters the Court expressly left to the parties, and each applicant has, on the information before the Court, reached a position with the State on the provision (or non-provision) of an apology or apologies.

9    The remaining matter to be explained is the application of the HOSCA. Essentially, the HOSCA deals with payments made by Medicare (through Services Australia) for injuries for which a person might subsequently be compensated. In colloquial language, it is intended to avoid “double dipping”: see the explanatory memorandum to the Health and Other Services (Compensation) Bill 1994 (Cth):

This Bill is one of a package of related Bills designed to address the problem of double dipping in health and community services programs by compensable people. This problem was identified in a public discussion paper prepared by the Review of the Relationship between Compensation and Health and Community Services Programs.

Double dipping occurs when a person receives a compensation payment to cover medical and other care costs in relation to a compensable injury and does not reimburse the costs of services already received through programs subsidised by the Commonwealth.

The Bill provides for the recovery of medicare and nursing home benefits paid for services in respect of the person’s compensable injury prior to compensation becoming payable.

The amount of benefits that were paid will be reimbursed to the Commonwealth by the insurer, or other compensation payer, at the time compensation becomes payable. Where an amount of compensation is reduced because of contributory negligence on the part of the compensable person, the reimbursement to the Commonwealth is reduced by the same proportion.

The Bill appoints the Health Insurance Commission as the Commonwealth’s agent for recovery of health and community services benefits paid in relation to services rendered to compensable people. The Health Insurance Commission is the statutory authority which administers the medicare program.

The Bill requires all insurers and other compensation payers to notify the Health Insurance Commission of all claims lodged for compensation where liability is not accepted within 6 months of the date of the claim. It also requires notification of various events in the claim’s progress, and when the compensation case is finalised.

10    In the joint written submissions, the parties submitted the provisions of the HOSCA apply to judgments, including, I take them to submit, the orders in Kaplan (No 8). The parties submitted that:

(a)    the HOSCA applies in circumstances where a person makes a claim against another person for “compensation” in respect of an “injury”;

(b)    each of the applicants were found in Kaplan (No 8) to have suffered an injury, which satisfies the definition of “injury” in HOSCA s 3; and

(c)    the payment of damages by the State pursuant to the orders in Kaplan (No 8) satisfies the definition of “compensation” in HOSCA s 4.

11    The Court accepts these submissions, although I note for completeness that the orders for compensation made under the RDA for each of the applicants related to harm they suffered in a sense that was wider than the specific physical and psychiatric injuries. The compensation ordered covered matters such as the applicants’ feelings of hurt, offence, fear, shame and distress arising from the contraventions of the RDA. Nevertheless, the parties do not contend this affects the application of the HOSCA and in those circumstances I am prepared to proceed on that basis.

12    The parties also submit that the State, as a “notifiable person” pursuant to HOSCA s 23, must notify the Chief Executive of Medicare (now Services Australia) in writing if a judgment has been made in respect of a claim. They also point to HOSCA s 32, which makes it an offence for a person to make a payment under a judgment prior to discharging any liability to the Commonwealth pursuant to the HOSCA. It is these provisions which are responsible for the proposed terms of the orders now sought.

13    Implicit in the parties’ submissions, though they did not submit so by explicit reference to any evidence before the Court, is that past benefits have been paid by the Commonwealth with respect to the applicants’ injuries. The particulars filed in the proceeding do include Medicare claim details (see, for example, the particulars filed in support of Liam’s claims), but no evidence about these payments was tendered. Nevertheless, I am prepared to accept that such payments have been made, and this has triggered the parties’ consideration of the application of the HOSCA.

14    There is some Federal Court authority about the operation of this legislation: see, for example, Rowell v Health Insurance Commission [2002] FCA 693; 120 FCR 386. However, the impediment to the provisions of the HOSCA being engaged in that case is not present here, as the State has been ordered by the Court to pay specific amounts to the applicants.

15    The joint submissions also relevantly state:

The parties are not aware of any comparable authorities in which a Note of the kind proposed has been recognised as necessary by the Court in cases involving the award of compensation under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth).

The Note was included out of an abundance of caution to acknowledge the application of the HOSCA and the agreement as between the parties that the First Respondent would wait until it received a valid Notice of Charge before distributing the compensation amounts.

16    I agree the note is probably unnecessary, but in the circumstances of this proceeding, where the parties are legally represented and have engaged in discussions about the terms of orders to which they were prepared to consent, I am content to make a form of orders that contains the note. The note will assist in making the position clear to any person reading the Court’s orders and reasons in these proceedings. It is surprising that no reported case the parties could locate involved orders of this kind, but I do not consider that should stand in the way of the orders being made in the form the parties propose.

17    For these reasons the Court has accepted that the orders proposed by the parties by consent are appropriate and should be made. These orders complete the final orders made by the Court in this proceeding.

Associate:

Dated:    30 October 2023

SCHEDULE OF PARTIES