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

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

Restorative justice as a behaviour management technique was objectively encompassed in the applicants' pleaded allegations of failures to take appropriate action, educate, discipline and protect, and had been sufficiently raised during the trial, so paragraphs [5]-[9] were relevant. Mr Paul could give expert evidence about what a reasonable school or principal would have done with respect to a student, but opinions amounting to speculation about student reactions, state of mind, or Mr Minack's sensitivity were inadmissible. The respondents' objections were therefore upheld only in part.

Jurisdiction
Australia
Judgment Date
01 August 2022
Procedural Posture
Evidence Objections to Passages in a Further Expert Report in a Proceeding Involving Alleged Contraventions of the Racial Discrimination Act 1975 (cth) and Negligence Allegations / During a Trial Conducted in Tranches; Determination of Respondents' Specific Objections to the Applicants Relying on the Further Report of Stephen Paul Dated 22 July 2022
Outcome
Applicants granted leave to tender and rely on the further report; respondents' objections upheld in part.
Legal Topics
['admissibility of Expert Evidence' 'relevance' 'speculation in Expert Opinion' 'racial Discrimination Act 1975 (cth) Ss 9 and 18' 'restorative Justice in School Behaviour Management']
['evidence' 'discrimination Law' 'negligence'] ['admissibility of Expert Evidence' 'relevance' 'speculation in Expert Opinion' 'racial Discrimination Act 1975 (cth) Ss 9 and 18' 'restorative Justice in School Behaviour Management']

Case Brief

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Procedural Posture

Evidence Objections to Passages in a Further Expert Report in a Proceeding Involving Alleged Contraventions of the Racial Discrimination Act 1975 (cth) and Negligence Allegations / During a Trial Conducted in Tranches; Determination of Respondents' Specific Objections to the Applicants Relying on the Further Report of Stephen Paul Dated 22 July 2022

Legal Issues

  1. 1 ['Whether paragraphs [5]-[9] of the further expert report concerning restorative justice were relevant to issues in dispute.' "Whether the opinion in paragraph [20] of the further expert report was within Mr Paul's expertise or amounted to speculation." "Whether the opinion in paragraph [39] about Mr Minack's sensitivity to offence caused by language in a 2019 speech was admissible expert evidence." 'Whether two sentences in paragraph [40] about how adolescent students would hear parts of the 2019 speech were admissible or speculative.']

Ratio Decidendi

Restorative justice as a behaviour management technique was objectively encompassed in the applicants' pleaded allegations of failures to take appropriate action, educate, discipline and protect, and had been sufficiently raised during the trial, so paragraphs [5]-[9] were relevant. Mr Paul could give expert evidence about what a reasonable school or principal would have done with respect to a student, but opinions amounting to speculation about student reactions, state of mind, or Mr Minack's sensitivity were inadmissible. The respondents' objections were therefore upheld only in part.

Court Disposition

Applicants granted leave to tender and rely on the further report; respondents' objections upheld in part.

Orders

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