Kaplan v State of Victoria

1. The application to call Cooper Andronaco as a witness in this proceeding on behalf of the applicants is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 By an interlocutory application filed on 16 August 2022, the applicants have sought leave to call a further lay witness. Cooper Andronaco is a former student at Brighton Secondary College. 2 This proceeding is currently part heard. After leave being granted to call some additional evidence, the applicants confirmed on 25 July 2022 that their lay witness case had closed. An expert witness being called on their behalf, Stephen Paul, is being interposed in the respondents' evidentiary case, because of the need to conduct this hearing in tranches and because of an earlier decision in which Mr Paul's first report was ruled inadmissible. As to the way this hearing is being conducted, and why, see my reasons in Kaplan v State of Victoria (No 5) [2022] FCA 909 at [1], [10]-[11]. 3 The evidence of Mr Andronaco is said by the applicants to be responsive to evidence given by Rebecca McMahon, one of the BSC teacher witnesses called on behalf of the respondents. Ms McMahon gave evidence on 28 July 2022. During her evidence, some further documents were produced by the respondents, about which Ms McMahon gave evidence. They related to an email report by her of having seen some swastikas. This was in addition to another report which was in her outline of evidence and about which documents had been discovered. This second event was not in her outline of evidence and was new evidence. 4 Ms McMahon's oral evidence was (transcript at p 1987, l 44 - p 1988, l 11): So I was doing a walkthrough of the building in - as I had been - as I was doing during - during my time as a student manager. So I - I had gotten to the science room, which is - again, it's a bit hard to explain, but it's basically tables and there's little benches to store their stuff because of the way the room is designed, they - they do prac work at the same space as their learning space. On the shelving part of one of the tables in the science room, there was a tag that said "skank", and around it were a few swastikas. I can't remember - it was - that was where most of the swastikas in that email were found. That particular bench: it was - it's an area in the room that if you're not - it is quite common to - where kids can hide, because it's not easily accessed by the teacher because the - the walkway is not clear. But that - we - so I found the - the graffiti there. I removed it at that point. And then I, yes, emailed the teachers, so the English teachers in particular, because they had given - they were studying the book at the time and they had given a speech the year - the year before, which has been previously - which I've previously spoken about that reinforced that the behaviour was inappropriate. 5 She then stated that the table had "five to six" swastikas on it. 6 The State submitted that these documents were being produced pursuant to its ongoing duty of discovery. As the transcript records, I considered there were highly unsatisfactory gaps in the affidavit account of how these documents came to be uncovered, and the delay in providing them to the applicants and their legal representatives. A day later, the State gave an undertaking through it senior counsel that the State and its solicitors "will expeditiously produce to the applicants any discoverable documents of which they become aware" from that point onwards: transcript at p 2084, ll 36-37. After that undertaking was given, I made the following observation to the parties (transcript at p 2084, l 43 - p 2085, l 8): HER HONOUR: All right. Thank you. I just want to emphasise to the parties that the way in which this matter has had to proceed in tranches has meant that the parties have had more opportunities than they would usually have to keep thinking about how they might add to or improve their cases, which has a snowball effect, and that has to stop, and I'm going to get stricter about that, about November. So please try and refrain from having any innovative and creative ideas between now and November. Please try and keep your case - approach the matter as if your case is as it is, and not, in that sense, take advantage of the fact that everybody's timetables, including the court, means that we can't reconvene until November. We have to close the evidence in this matter, and I really want it closed, subject to anything absolutely exceptional, at the end of these two weeks in November. 7 Despite this, the respondents applied to call Mr Sanders, and now the applicants have applied to call Mr Andronaco. The application to call Mr Sanders was refused in Kaplan (No 5), and this application should be refused for similar reasons. 8 Like the respondents' application, this application seeks to take further advantage of the trial being conducted in tranches. Even on its face, the proposed evidence from Mr Andronaco has nothing more than a tangential and accidental connection to Ms McMahon's evidence. 9 Ms McMahon did not mention Mr Andronaco in her evidence. The sole reference to Mr Andronaco is in the email chain produced by Ms McMahon. Another teacher (Casey Standish) responds to Ms McMahon's email notifying staff about the swastikas by naming three students then in Year 11 who Ms Standish told Ms McMahon were in the room on the day when Ms McMahon saw the desks with the swastika graffiti on them. Ms Standish said "I doubt it was them". 10 The outline attached to Mr Lo Monaco's affidavit in support of the application demonstrates that there is nothing at all responsive to Ms McMahon's evidence in the proposed content of Mr Andronaco's evidence. All the outline states that Mr Andronaco will say is: I have been contacted by the lawyers for the Applicants and informed by them that I was mentioned in email correspondence between Ms Rebecca McMahon and Ms Casey Standish in 2018. I remember Ms Standish but I do not remember being questioned by Ms Standish about graffiti or to provide a timeline. I have no memory of Ms McMahon. 11 In substance, Mr Andronaco's evidence as contained in the outline concerns other topics. They are familiar ones; they are the same topics that more than 20 other student witnesses have given: where they saw swastikas, their estimates of how many they saw, whether or not they saw any action taken by school staff about them, the allegedly anti-Semitic culture at BSC, how other schools they had attended were different in their attitudes to Jewish students, and the differential approach by BSC staff and senior management to LGBTQI+ students compared to Jewish students. 12 Mr Andronaco's evidence is not responsive to that given by Ms McMahon. This is nothing more than an opportunistic attempt by the legal representatives of the applicants to add another student witness to give the same kind of evidence that other students have given. The applicants, with their legal representatives' advice, made their forensic decisions about which student witnesses to call, and how many to call. They then closed their lay witness case. They should be held to that position, just as the respondents were with their application in respect of Mr Sanders. 13 In written submissions, the applicants' lead counsel seeks to derive some advantage from what was said by the Court when the objection was taken to Ms McMahon's evidence and the tender of the documents. That attempt should be rejected. What the Court made clear was that the applicants and their legal representatives would be given a chance to consider Ms McMahon's new evidence and how they wished to respond to it. Ms McMahon was not excused at the end of her evidence for this very reason. This is what was said (transcript at p 1902, ll 42-47, p 1904, ll 3-5): HER HONOUR: All right. Mr Butt, it seems to me that this is so - for the reasons I've just outlined, I accept that it's really unfair to you and your clients, but it's evidence that's central to this case. So I will allow Ms McMahon to be questioned about it. I will not release her until you tell me you've had some time to consider this and seek instructions. And if you want to make an application to recall anybody because of this, you can make that application. All right. … HER HONOUR: You will have leave to make whatever application you see fit, and if it's to recall Mr Minack or Ms Angelidis, then I will entertain that application as well, all right. 14 As it turned out, the applicants elected not to have Ms McMahon recalled. They have not applied for any existing witness to be recalled, including the applicants. 15 The belated evidence from Ms McMahon may be the subject of submissions at the end of this trial. The way her fresh evidence was notified and adduced was unsatisfactory, as I have explained. But neither of these circumstances justify the applicants opportunistically trying to add another student witness on factual issues which have been well canvassed, where their witness case is closed, and the respondents have made their own forensic decisions about which witnesses to call based on the state of the applicants' lay evidence. There is nothing whatsoever responsive about this interlocutory application.