Kaplan v State of Victoria (No 3) [2022] FCA 728

Kaplan v State of Victoria (No 3) [2022] FCA 728

The expert was not given specific, articulated factual assumptions but was instructed to sift witness statements and make factual findings; this practice is illegitimate and trespasses on the court’s function, rendering the expert report inadmissible.

Parties
First Applicant: Joel Kaplan; Second Applicant: Janet Abadee as representative of Matt Kaplan, a minor; Third Applicant: Sarit Cohen as representative of Guy Cohen, a minor; Fourth Applicant: Natalie Snelling as representative for Zack Snelling, a minor; Fifth Applicant: Liam Arnold-Levy; First Respondent: State of Victoria; Second Respondent: Richard Minack; Third Respondent: Paul Varney; Fourth Respondent: Demi Flessa
Jurisdiction
Australia
Judgment Date
22 June 2022
Procedural Posture
Objection to Evidence in Ongoing Proceeding / Ruling on Admissibility of Evidence (expert Report)
Outcome
Tender of expert reports rejected
Legal Topics
Admissibility of Expert Evidence, Fact Finding, Expert Opinion, Federal Court Procedure
Evidence Admissibility of Expert Evidence Fact Finding Expert Opinion Federal Court Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Joel Kaplan

First Applicant

Janet Abadee as representative of Matt Kaplan, a minor

Second Applicant

Sarit Cohen as representative of Guy Cohen, a minor

Third Applicant

Natalie Snelling as representative for Zack Snelling, a minor

Fourth Applicant

Liam Arnold-Levy

Fifth Applicant

State of Victoria

First Respondent

Richard Minack

Second Respondent

Paul Varney

Third Respondent

Demi Flessa

Fourth Respondent

Procedural Posture

Objection to Evidence in Ongoing Proceeding / Ruling on Admissibility of Evidence (expert Report)

Legal Issues

  1. 1 Whether the expert report of Stephen Paul is admissible
  2. 2 Appropriate instructions to experts for tendering opinion evidence
  3. 3 Role of expert versus role of court in factual matters

Ratio Decidendi

The expert was not given specific, articulated factual assumptions but was instructed to sift witness statements and make factual findings; this practice is illegitimate and trespasses on the court’s function, rendering the expert report inadmissible.

Court Disposition

Tender of expert reports rejected

Orders

  • The tender of the expert reports of Stephen Paul dated 8 May 2022 and 17 June 2022 be rejected.