My conclusion
5 There is no challenge to Mr Paul's expertise, nor to these matters as being within his area of expertise. I proceed on those assumptions. Mr Paul's evidence in [5]-[9] covers several distinct matters:
(a) he describes and explains the concept of "restorative justice" in a high school setting, concerning student behaviour management (at [5]);
(b) he explains his own use and experience of it when he was a principal (at [6] and [7]);
(c) he expresses some opinions about it being "standard industry practice in most Australian schools" between 2013-2020, and refers to some Victorian Department of Education publications and statements about it (at [8]);
(d) he expresses some opinions about its effectiveness (at [9]); and
(e) he expresses the opinion that (at [8]):
Against this context I find it very concerning that a restorative justice process was employed at BSC [Brighton Secondary College] only once in relation to all five Applicants and specifically only in relation to Joel Kaplan (7.1 below) during the Period in question. In terms of my personal professional experience, I was using restorative justice procedures at the time of my retirement at the end of 2008 and had been for a number of years on a regular basis.
6 There is no express allegation in the applicants' pleadings about a failure by senior management and teachers at Brighton Secondary College to employ a restorative justice process as part of the behaviour management methods applied to those students who engaged in bullying, alleged to be antisemitic bullying, of one or more of the applicants. If it is to be considered as raised on the pleadings, that can only be because as a management technique it is seen as a sub-set of actions that might be taken, or employed, at a state secondary school to deal with undesirable or inappropriate behaviour between students. Relevant aspects of the applicants' statement of claim and concise statement are:
(a) as to s 9 of the RDA, statement of claim at [366] - an allegation of a failure by Mr Minack to "take action" in response to antisemitic behaviour;
(b) as to s 9 of the RDA, statement of claim at [367]-[368] - an allegation that the "same failures apply in relation to all staff to whom reports/notification" were made;
(c) as to negligence and alleged breach of a duty of care, statement of claim at [380] (in relation to Liam Arnold-Levy), under the particulars "Failure to Protect and Discipline" and also "Failure to Educate", especially an alleged failure to "to take adequate steps to stop or modify the behaviour of offending pupils", and an alleged failure to "educate sufficiently, so as to avoid anti-Semitic bullying occurring";
(d) as to negligence and an alleged breach of a duty of care, statement of claim at [385] (in relation to Joel Kaplan), under the particulars "Failure to Educate", an alleged failure to "educate students sufficiently so as to avoid escalating anti-Semitic verbal and physical assaults";
(e) as to negligence and an alleged breach of a duty of care, statement of claim at [390] (in relation to Matt Kaplan), under the particulars "Failure to Protect and Discipline", an alleged failure to "ensure that appropriate steps were taken to prevent normalised anti-Semitic insults and threats at Brighton" and an alleged failure to "take adequate steps to stop or modify the behaviour of offending pupils. Then under the heading "Education", an alleged failure to "educate students sufficiently so as to avoid escalating anti-Semitic verbal and physical assaults";
(f) as to negligence and an alleged breach of a duty of care, statement of claim at [395] (in relation to Guy Cohen), under the particulars "Failure to Protect and Discipline", an alleged failure to "ensure that appropriate steps were taken to prevent normalised anti-Semitic verbal and physical abuse at Brighton" and an alleged failure to "appropriately discipline perpetrators of the daily racist abuse to stamp it out or to modify their behaviour to prevent continuation". Then under the heading "Failure to Educate", an alleged failure to "educate students sufficiently so as to avoid escalating anti-Semitic verbal and physical assaults";
(g) as to negligence and an alleged breach of a duty of care, statement of claim at [400] (in relation to Zack Snelling), under the particulars "Failure to Protect", an alleged failure to "take appropriate steps to discipline bullies who ultimately criminally assaulted and robbed Zack in a park in the middle of the night", and an alleged failure to "ensure that appropriate steps were taken to prevent normalised anti-Semitic verbal and physical abuse at Brighton". Then under the heading "Failure to Educate", an alleged failure to "educate students sufficiently, so as to avoid anti-Semitic bullying occurring on its premises". There are also various particulars under the heading "Failure to Discipline" which could objectively encompass restorative justice approaches to student behaviour management; and
(h) in the concise statement:
(i) "The School had a failed system of discipline and education with respect to Jewish (and/or Israeli) issues and concerns, resulting in a normalised culture of anti-Semitism" (at [2]);
(ii) the failure to take action on incidents, alleged to be a "result of anti-Semitic attitudes and apathy that flowed from the top down, which were normalised across the period", and alleged to contravene s 9 of the RDA (at [6]);
(iii) "The School breached its duty of care when failing to devise, implement and maintain an adequate anti-bullying program; failing to act upon the Applicants' complaints of bullying/racism etc; failing adequately to investigate and prevent the bullying of which the Applicants complained, by supervising, disciplining and counselling or educating the perpetrators" (at [14]); and
(iv) "A plethora of steps concerning discipline, reporting, education, training etc, could have, and should have, been taken to avoid the foreseeable risk of harm of which the School was aware" (at [17]).
7 On balance, and for the reasons that follow, I consider the employment of restorative justice as one of the available techniques or processes to manage student-on-student behaviour at BSC is a matter included in the applicants' case as pleaded when viewed objectively, and about which the respondents have had sufficient notice during the course of the trial to this point. Therefore, the evidence is relevant and the objection should be overruled.
8 It is true (as the respondents contend) that the allegations of 'failure' to discipline, educate or protect suffer from a level of generality that is less than desirable. However, it is the respondents who have put forward all of the applicable policies and procedures relevant to student behaviour management at BSC, and who, I find, are more likely than not to be aware of the concept of restorative justice as a tool in behaviour management at secondary schools. I consider it is unlikely that the respondents could not reasonably have appreciated that such a topic was encompassed in the allegations about "failures" to educate and discipline, restorative justice being a process which could operate towards both objectives. That is especially so since Mr Butt opened for the applicants on this very issue: see transcript at p 20, l 38 - p 21, l 1.
9 In my opinion, restorative justice as a behaviour management tool for incidents between secondary school students is an obvious inclusion in the topic of failures to take appropriate action to stop or modify the behaviour of the students the applicants allege were engaged in antisemitic bullying against them. Mediation is also not expressly pleaded but is plainly another behaviour management tool that was available. Similarly, the "follow up" failures with respect to the applicants, about which many respondent witnesses have been questioned (notably in relation to Zack Snelling) are not pleaded in any real detail, but are an obvious inclusion in the topic of failures to take appropriate action. So too, the alleged failures to have any, or any sufficient, campaign of education about antisemitism and its effects at BSC. I make those findings without of course expressing any view about the persuasiveness or correctness of the applicants' allegations; but rather to make the point that if one is considering a question such as 'what steps might a Victorian state school in the position of BSC have been reasonably expected to take', restorative justice processes are a matter which is obviously in reasonable contemplation.
10 It is also correct that Mr Minack was cross-examined on the proposition that a restorative justice process was used once in relation to Joel Kaplan and not otherwise used in relation to any of the applicants and their allegations: see transcript at p 1572, ll 8-10. As a factual proposition that does not appear to be disputed. I also accept that Ms Angelidis and Mr Hutchins were asked about it, along similar lines. None of these witnesses, when asked about it, gave any evidence that they considered but rejected using such a process. Nor did they give any evidence that they were aware that others in positions of responsibility with respect to student behaviour had suggested using it. Nor were Mr Minack and Mr Hutchins re-examined on this matter. Ms Angelidis was re-examined about her understanding of the concept, but not whether it was considered/rejected (or even used) as a possible approach for any of the applicants: see transcript at p 1712, ll 1-16.
11 In my opinion, the use of restorative justice as a behaviour management technique in Victorian secondary schools has been sufficiently raised in the existing evidence, documentary and oral, to this point, as well as in the opening on behalf of the applicants, for it to be a matter the respondents objectively should have understood to be included in the failures to take appropriate action in response to the alleged antisemitic conduct of other students. It is a matter apparently contemplated by the State's Bullying Prevention and Response Policy, at least insofar as the document refers to the "provision of mediation". In [3A]-[3B] of their defence, the respondents rely on this policy.
12 For completeness, I might add that while the applicants emphasised this topic may be more relevant to their negligence allegations, it seems to me it is arguably relevant also to the alleged contraventions of s 9 of the RDA. Indeed, the failures to take action are pleaded in respect of both causes of action, as I have outlined above.
13 Having found the evidence is relevant, there may be other consequences for the parties if it is adduced. The respondents might seek to explore the topic of restorative justice in more detail with their remaining witnesses. That is an opportunity available to them because this trial is now occurring in tranches. The applicants have taken advantage of the gaps between the tranches to ask Mr Paul to prepare a further report when his earlier reports were held to be inadmissible. If the applicants wish to press reliance on [5]-[9] of Mr Paul's further report, given the sequence of evidence in this proceeding, then the risk that the respondents might seek to answer it with some fresh evidence of their own from their remaining witnesses may be a consequence which the applicants will have to accept.